Fhe  True  W^ay 


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Simplify  Our  Lah'H'  Titles, 


And  Improve  Our  Land  Taxing  Systemj 


The  Torrens  System  of  Land  Transfers,  the  German  Sys- 
tem of 'Titles  and  Taxation,  and  Other  Land 
Title  System^ ^Related  Thereto. 


JOHN  T.  KBNNBY 


MADISON,  WISCONSIN. 
Aug.  16,  1906. 


V S;  L 1;  i i 

IC'V,IJ.M  VO  V! 

I.  K I.  ■ < 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/truewaytosimplifOOkenn 


U o 


CONTENTS 


PART  1. 

Page 

Introduction  5 

The  Torrens  and  Other  Systems  of  Land  Transfers  5 

Origin  and  Aim  of  Torrens  System  6 

“Merchant  Shipping  Acts”  6 

Conveyancing  by  Book-keeping  6 

Sir  Robert  Torrens’  Later  Apparent  Change  of  View  6 

Development  of  Systepa  in  Australia  7 

Method  of  Development  7 

Cost  and  Complexity  of  Present  Law  7 

The  Two  Chief  Features  of  the  System  7 

Indefeasible  Titles  7 

Indemnity  Fund  7 

The  Two  Old  Systems  7 

The  Title  Deeds  System 8 

The  Recording  System  8 

Why  the  Title  Deeds  System  was  not  alone  relied  upon  in 

the  U.  S 8 

Why  Recording  System  was  developed  in  U.  S 9 

Torrens  System  and  Constitutional  Guarantees  9 

Torrens  System  disposed  of  in  the  United  States  9 

Ohio  and  Illinois  Supreme  Court  Decisions  9 

The  Insurance  Feature  10 

Repealed  by  Ohio  Legislature  10 

Illinois  Devises  new  Scheme;  So  called  Torrens  Law 10 

Chicago  Abstract  Monopoly  Prolongs  Struggle  for  Some  New 

Systems  in  Chicago  and  Cook  County  10 

Land  Transfers  by  Lawsuit,  Substituted  for  Conveyancing  by 

Book-keeping  11 

New  and  Old  Illinois  Torrens  Laws  Compared  11 

Illinois  Supreme  Court  on  New  Law  ' 12 

Law  almost  Dead  Letter  in  Illinois  12 

Compulsory  Registration  of  Titles  Fails  in  Chicago 12 

Interest  in  Systems  declining;  Official  Attention  turning  to  ab- 
stracts   13 

Number  of  Registrations  Decreasing 13 

Public  Abstract  Books  being  Rewritten 13 

New  Million  Dollar  Abstract  Company  organized  13 

Cost  of  System  to  Cook  County 13 

Experience  of  Other  States  13 

The  Minnesota  Law  14 

Registrations  Set  Aside 14 

Judge  Brooks’  Decision  1 . . . 14 

Cost  of  Registration  in  Minnesota  14 

The  Massachusetts  Law  15 

Cost  of  Registration  Court;  Fees  for  Registration  16 

Number  of  Titles  Registered  and  Applications  therefor  16 

Change  of  Name  and  Jurisdiction  of  Court  16 


Q 


— 4 — 


Page 

The  Torrens  and  Other  Systems  of  Land  Transfers — continued. 

Torrens  System  Indirectly  abandoned  by  Officials  under  it 16 

Law  in  any  Form  not  yet  passed  upon  by  the  U.  S.  Supreme  Court  . . 16 

Legislative  Action  in  U.  S.  as  to  System  Generally  Adverse  17 

Defeated  in  Wisconsin  17 

Radical  Features  of  the  Proposed  Bill  17 

By  Whom  Bill  introduced  and  Passage  Urged  18 

The  System  Apart  from  Constitutional  Limitations  19 

System  Wrong  in  Principle 20 

Systems  of  Other  Countries  21 

The  German  System  21 

Our  Own  System  and  German  System  Compared  2o 


PART  II. 

The  True  Way  to  Simplify  Our  Land  Titles  and  Improve  Our  Land  Taxing 

System 24 

The  Conclusion  Reached  by  the  City  and  State  of  New  York 24 

Some  Suggested  Improvements  25 

Change  in  Statutes  of  Limitations 25 

Simplification  of  Court  Proceedings  25 

Testing  and  Supervision  of  Conveyancers  26 

Function  of  Notary  in  France  26 

Instructions  of  Wisconsin  Tax  Commission  as  to  Land  De- 
scriptions   26 

Mistakes  not  Confined  to  Obscure  Officials  26 

Supervision  and  Control  of  Public  Platting  27 

When  Complete  General  Survey  and  Plat  Necessary 28 

Bill  Nye’s  Style  of  Land  Descriptions  28 

Should  not  be  left  to  Local  Officers  29 

Supervision  of  Register  of  Deeds  Offices  29 

Advance  in  Office  Methods,  Books  and  Appliances  in  last 

five  years  29 

Private  and  Public  Offices  Compared  29 

Supervision  and  Control  of  Abstract  Work  and  Offices 29 

As  to  Private  Offices  and  Work  29 

As  to  Abstracters  from  Public  Indices  and  Records  29 

As*  to  Making  the  Tract  Indices  and  Abstract  Books  by  Con- 
tractors and  their  Employes  29 

System  Requires  Head  29 

Importance  of  Unity  30 

$30,000.00  spent  in  getting  Data  for  Tax  Commission  in  Valu- 
ing Railroads  30 

Greater  Sums  Spent  by  Railroads  for  Same  Purpose 30 

Larger  investigation  of  Land  Values  now  in  progress 30 

Larger  Task  Remaining  30 

Fixing  Boundaries  and  getting  acreage  for  Taxing  Purposes. . 30 

Basis  of  all  Land  Title  and  Land  Taxing  Systems  same  ....  30 

The  Abstracter’s  Part  of  this  Important  Work 31 

. ^Resultant  Saving  and  Improvement  31 

Final  American  System  of  Land  Titles  31 

Conclusion  . . . .■ 31 


ADDRESS 


O F 


Jokn  X.  Kenney  of  tlie  Madison  Bar 


Before  the  State  Association  of  Wisconsin  Abstracters,  at 
Madison,  Wis.,  August  16,  1906. 


Members  of  the  Association  and 
Friends: 

That  our  present  system  of  land 
transfers  is  in  serious  need  of  simpli- 
fication and  improvement  or  of  com- 
plete reform,  no  one  is  more  fully 
aware,  I believe,  than  the  members 
of  this  association.  The  importance 
of  this  need  is  greatly  emphasized  by 
the  work  in  respect  to  land  titles  and 
transfers  now  being  undertaken  quite 
generally,  but  particularly  in  this 
state,  in  connection  with  the  effort  to 
improve  our  taxing  system.  The 
close  relationship  existing  between 
these  two  systems,  and  the  similar 
character  of  a large  part  of  the  work 
under  each,  although  not  perhaps  gen- 
erally appreciated,  is  nevertheless  a 
very  important  fact  in  this  connec- 
tion I need  not  argue  to  you.  Gov- 
ernor 'LaFollette’s  recommendation  to 
the  last  legislature  to  take  up  this 
subject  was,  therefore,  I believe  you 
will  all  agree  with  me,  very  timely 
and  still  is  well  worthy  of  the  most 
careful  consideration  at  the  hands 


not  only  of  the  legislature  of  this  and 
of,  every  other  state  in  the  country, 
but  of  every  one  connected  with  each 
of  these  systems,  and  particularly  ot 
those  of  us  who  have  special  oppor- 
tunities to  study  the  defects  of  our 
present  system  of  land  transfers  as 
we  1 as  the  proper  remedies  therefor. 

The  Torrens  and  Other  Sys- 
tems of  Land  Transfers. 

In  this  as  |in  all  similar  investiga- 
tions the  first  question  to  be  asked 
by  the  impartial  investigator  is  the 
comparative  one.  What  are  the  mer- 
its and  demerits  of  our  system  of 
land  titles  as  compared  with  those  of 
other  progressive  countries?  In  order 
to  answer  this  question  intelligently 
we  must  have  a reasonably  clear 
idea  of  the  salient  features  at  least  of 
these  other  systems  as  well  as  of  our 
own,  and  of  these  the  Australian  or 
Torrens  System  of  land  transfers  is 
undoubtedly  the  one  to  which  atten- 
tion has  been  most  frequently  di- 


— 6 — 


rected  by  the  speakers  and  writers 
upon  this  subject  in  this  country  in 
recent  years. 

To  a consideration  of  this  system 
therefore  in  so  far  as  related  to  this 
subject  I desire  to  invite  your  atten- 
tion first  this  afternoon. 


Origin  and  Aim  of  Torrens  Systsm. 

The  system  received  its  name  from 
Sir  Robert  Richard  Torrens,  by  whom 
it  was  devised  and  under  whose  super- 
vision it  was  first  put  into  operation  in 
South  Australia.  It  was  enacted  into 
law  there  in  1857,  but  did  not  go  into 
•effeot  until  July  1st,  1858.  It  is,  there- 
fore, it  will  be  noticed,  just  48  years 
one  month  and  a half  old  today.  It 
embodies  a scheme  for  the  transfer 
of  land  titles,  modelled  on  what  was 
known  in  English  law  as  the  "Mer- 
chant Shipping  Acts’’  under  which  the 
transfer  of  shares  in  ships  was  ac- 
complished in  a manner  similar  to 
the  way  in  which  the  transfer  of 
shares  of  stock  in  corporations  is 
conducted  in  this  country  at  the  pres- 
ent time. 

It  has  been  called  a system  of  con- 
veyancing by  book-keeping,  and  un- 
doubtedly this  designation  expresses 
more  clearly,  I think,  than  it  could  be 
expressed  in  any  other  way,  what  its 
author  hoped  to  make  it,  when  he  set 
to  work  upon  it.  (Hogg  on  Torrens 
System,  pp.  4 and  5.)  He  was  not  a 
lawyer,  or  even  student  particularly  of 
this  subject  previously,  and  having  no 
special  knowledge  of  the  fundamental 
differences  in  the  very  nature,  of  per- 
sonal property  and  real  estate,  or  of 
the  necessary  consequences  in  human 
action,  custom  and  law  flowing  there- 
from, it  did  not  seem  difficult  to  him 
to  devise  a mere  system  of  book-keep- 
ing which  should  completely  simplify 
the  whole  matter  of  dealings  in  land, 
by  putting  those  dealings  upon  the 
same  basis  as  dealings  in  personal 
property. 

If  the  title  to  an  apple,  a pound  of 


coffee,  a bushel  of  wheat,  a share  of 
stock, , a,  ship  or  other  personal  prop- 
erty could  be  transferred  from  one  per- 
son to  another  by  the  mere  making  of 
an  entry  in  a book  by  a clerk  in  a 
store  or  office,  why  could  not  the  title 
to  land  be  transferred  in  the  same 
way?  This  fairly  expresses  his  origi- 
nal idea,  as  well  as  the  popular  impres- 
sion in  most  quarters  about  the  mai- 
ler, I believe,  even  today. 

Sir  Robert  Torrens’  Later  Apparent 
Change  of  View. 

It  seems,  however,  that  after  Sir 
Robert  Torrens  had  spent  some  yeai's 
in  endeavoring  to  put  his  system  into 
practical  operation  in  Australia  he  be- 
came less  enthusiastic  about  its  mer- 
its, at  least  so  far  as  any  other  than 
a new  country  was  concerned. 

He  does  not  appear  to  have  clearly 
formulated  his  views  upon  this  sub- 
ject it  is  true.  There  is  no  dispute 
about  the  fact  however  that  upon  his 
return  to  England  and  entering  the 
English  par.iament,  after  several 
years  actual  trial  of  his  system  under 
his  own  supervision  in  Australia,  that 
he  never  urged  the  adoption  of  his  sys- 
tem of  land  titles  in  England,  and 
when  a bill  was  introduced  by  another 
and  enacted,  with  his  opposition  it  is 
claimed,  into  law  by  the  English  par- 
liament, permitting  tit'es  to  lands  in 
some  counties  of  England  to  be  reg- 
istered in  a manner  similar  to  his 
Australian  method,  it  is  admitted  that 
he  never  registered  the  title  to  an 
acre  of  his  own  land  under  it,  al- 
though a large  land  owner  in  the  coun- 
ties to  which  the  law  applied.  (Reg- 
istration of  Title  to  Land.  Brickdale. 
D.  49.)  It  can  well  be  imagined,  there- 
fore, that  in  the  meantime  he  had 
gained  a clearer  comprehension  of 
the  essential  differences  in  these  two 
grand  divisions  of  human  property, 
known  as  real  and  personal,  as  well 
as  the  inevitable  difference  there 
must  always  and  everywhere  be,  also. 


in  the  great  body  of  law  applying  to 
each. 

Development  of  System  in  Australia. 

In  the  meantime,  too,  his  system  of 
conveyancing  in  Australia  had  grown 
into  much  more  than  a mere  system 
of  book-keeping.  By  judicial  inter- 
pretation and  new  legislative  enact 
ments  it  had  developed  along  many 
lines  of  which,  when  he  devised  the 
scheme,  he  had  never  thought,  until 
it  had  become  a very  complicated,  as 
well  as  a very  novel  system  of  land 
transfers,  with  not  only  its  own  pe- 
culiar system  of  ^ book-keeping  but  its 
own  peculiar  body  of  technical  as  v/ell 
as  general  laws  and  rules. 

It  has  continued  to  develop  in  this 
way  ever  since,  until  today  as  it  ex- 
ists in  practical  operation  in  Australia, 
it  is  one  of  the  most  complicated, 
costly  and  technical  systems  of  land 
titles,  I believe,  in  the  world,  or 
rather  nine  such  entirely  distinct  sys- 
tems. 

If  any  one  doubts  this  proposition, 
I think  they  can  speedily  convince 
themselves  of  its  truth  by  a study  oi 
the  latest  book  devoted  to  an  expla- 
nation of  the  statutes  as  they  stand 
today  in  the  nine  Australian  territories 
in  which  the  system  originated.  This 
work  although  carefully  and  ably  writ- 
ten, without  any  attempt  to  advocate 
or  oppose  its  adoption  in  any  other 
country,  or  to  deal  with  the  subject  in 
any  but  the  most  brief  and  practical 
exp’anatory  way,  nevertheless,  runs 
into  a volume  of  1086  pages  of  about 
as  drj^  and  difficult  reading  as  I have 
ever  undertaken  to  digest. 

It  is  to  be  found  in  the  Supreme 
Court  law  library  in  the  capitol  and 
is  entitled  “The  Australian  Torrens 
System”  by  James  B.  Hogg,  London. 
1905. 

The  Two  Chief  Features  of  the  System. 

It  v/ou’d  be  impossible  for  me  today, 
it  can  readily  be  seen,  to  give  any 
complete  idea  of  this  system  as  it  has 
been  developed.  It  is  sufficient  for 


my  purpose  to  call  attention  to  ils  two 
main  underlying  ideas.  These  may 
be  briefly,  but  clearly  set  out  I think, 
as  follows: 

1st.  At  the  time  of  each  transfer  of 
land  under  this  system  it  is  sought  ro 
finally  determine,  and  then  to  inde- 
fensibly fix  the  title  to  it  in  the  pur- 
chaser, by  the  public  registration  or 
entry  of  it  in  his  name  in  the  public 
record  book  kept  for  that  purpose. 

This  seems  very  plain,  simple  and 
easy.  In  practice,  however,  it  will  be 
noticed  by  anyone  who  stops  to  con- 
sider the  matter  at  all  that  this  re- 
sult would  necessarily  be  attended 
with  two  very  serious  consequences. 
These  are,  (a)  such  a law  constitutes 
the  person  who  makes  the  entry  a 
judge  from  whose  decision  there  is  no 
appeal,  and  (b)  it  also  constitutes  bis 
entry  an  official  judgment  of  final  and 
conclusive  authority. 

2nd.  An  indenmity  fund  is  collected 
from  the  owners  of  registered  or 
other  titles  for  the  purpose  of  compen- 
sating in  damages  any  one  whose 
lands  may  be  wrongfully  taken  by  mis- 
take or  otherwise  in  registering  titles 
under  the  law. 

This  provision  is  quite  as  pregnant 
with  serious  results  as  the  other,  a 
moment’s  consideration  will  disclose, 
(a)  It  makes  the  state  a guarantor,  it 
will  be  observed,  of  the  acts  of  the 
registering  officer,  and  (b)  it  embarks 
the  state  in  the  business  of  insuring 
land  titles.-  This  latter  is  a very  im- 
portant corollary,  too,  of  the  first  men- 
tioned feature  of  the  law.  For  if 
titles  are  to  be  made  indefeasible  by 
registration,  wthout  -an  infallible  and 
an  incorruptible  registering  officer,  it 
requires  no  prophet  to  foresee  that 
many  people  will  soon  be  unjustly  de- 
prived of  their  lands. 

THE  TWO  OLD  SYSTEMS. 

Perhaps  the  best  way  to  get  a clear 
understanding  of  this  new  system  is 
to  first  notice  briefly  the  prominent 
characteristics  of  the  two  oM  systems. 


— 8 — 


with  a glance  also  at  the  history  cf 
their  development. 

The  Title  Deeds  -System. 

The  first  and  oldest  general  system 
of  land  transfers  nov/  in  use  is  thai 
which  may  be  designated  as  the  title 
deeds  system  or  method.  Under  this 
system,  which  is  still  in  operation  in 
most  of  the  counties  of  England  and 
in  many  other  parts  of  Europe,  the 
transfer  of  land  is  effected  by  the 
production  and  delivery  of  all  the  title 
deeds  to  the  land  in  question,  includ- 
ing one  from  the  seller  to  the  pur- 
chaser. Under  this  system  no  public 
record  of  these  deeds  is  kept  at  all. 
Unquestionably  this  system  would  be 
impossible  of  operation  in  this  coun- 
try, and  it  is  only  practicable  in  those 
parts  of  the  old  country  where  the 
law  of  primogeniture  or  other  laws  in 
restraint  of  the  alienation  or  sale  of 
land  is  in  force,  and  land  is  scarcely 
considered,  consequently,  a commer- 
c’al  commodity  at  all.  Until  very  re- 
cent years,  it  will  be  remembered,  the 
oldest  son  in  England  inherited,  under 
this  law  of  primogeniture,  all  the  real 
estate  of  a deceased  person,  and  by 
reason  of  the  law  and  custom  pertain- 
ing to  entails  it  was  rarely  possible  for 
him  to  sell  it  at  all.  It  will  be  seen, 
therefore,  that  the  possession  and  pro- 
duction of  all  the  title  deeds,  as  a 
means  of  establishing  the  title  to  land, 
was  so  seldom  necessary  that  its  bur- 
den and  difficulty  did  not  become  a 
serious  hardship. 

Prior  to  this  system  of  title  deeds  or 
other  instruments  in  writing,  for  the 
conveyance  of  lands,  the  custom  was 
to  transfer  it  orally,  as  the  purchase 
and  sale  of  the  less  important  kinds 
of  personal  property  is  conducted  to- 
day. It  will  be  seen,  therefore,  that 
this  system  of  title  deeds  is  a great 
improvement  on  the  prior  way. 

The  Recording  System. 

The  second  system  is  that  known  as 
the  recording  system.  With  this  sys- 


tem we  are  all  familiar.  It  is  a 
clear  step  also  in  advance.  It  pro- 
vides as  is  well  known  for  the  copying, 
in  part  or  at  length,  of  all  properly  ex- 
ecuted papers  pertaining  to  the  titles 
to  lands,  on  the  public  records  of  the 
county  where  the  land  lies.  In  its 
main  features  of  notarial  or  other  of- 
ficial execution  of  instruments  trans- 
ferring land,  and  the  public  inscrip- 
tion or  record  in  a public  registry  or 
recording  office,  of  these  instruments, 
this  system  is  in  use  in  the  republic 
of  France,  in  Holland,  Italy,  a large 
part  of  Switzerland  and  several  other 
countries  of  Europe.  It  has  been  in 
use  in  this  country  since  the  organiza- 
tion of  this  government.  Its  adoption, 
or  rather  its  development  in  this 
country,  too,  was  not  a mere  matter  of 
chance  but  a natural  outgrowth  of 
the  fundamental  principles  upon  which 
this  republic,  and  the  government  of 
each  of  the  states  as  well,  was 
founded'. 

Why  the  Title  Deed  System  Was  Not 
Alone  Relied  Upon  in  the  U.  S. 

One  of  these  fundamental  principles 
was  that  tenure  in  land  should  be  free 
or  allodial,  as  opposed  to  what  is 
known  in  law  and  history  as  Feudal 
Tenure.  That  is,  in  brief,  that  all  un- 
necessary restraints  upon  the  aliena- 
tion or  sale  of  land,  such  as  those  im- 
posed by  the  law  of  entail  and  primo- 
geniture, should  be  abolished.  This 
is  provided  in  section  14  of  the  con- 
stitution of  Wisconsin,  and  is  to  be 
foundl  in  some  form  in  the  constitu- 
tion of  substantially  every  state  in 
the  union.  As  a result  of  this  free- 
dom, granted  to  the  people  in  this  na- 
tion from  the  beginning  in  the  trans- 
fer of  lands,  it  toiiows  as  a necessary 
consequence  that  the  title  deeds  sys- 
tem would  not  alone  serve  the  practi 
cal  needs  of  the  people  of  the  United 
States.  Its  burden  would  be  intoler- 
able, .and  the  American  people  conse- 
quently were  too  wise  to  cling  to  it  as 
a complete  system. 


— 9 


Why  Recording  System  Was  Devel- 
oped in  U.  S. 

Upon  the  other  hand  another  funda- 
mental principle  of  American  liberty 
is  that  contained  in  both  the  5th  and 
14th  amendments  to  the  constitution 
of  the  United'  States.  These  provide, 
among-  other  things,  that  no  person 
shall  be  deprived  of  life,  liberty,  or 
property  “without  due  process  of  law’’ 
nor  be  denied  “the  equal  protection  of 
the  laws.’'  In  other  words,  and  as 
construed  by  the  courts,  this  language 
is  held  to  mean,  as  it  was  intended  i. 
should  mean,  that  every  person  must 
receive  a full,  fair  and  open  trial  witii 
all  proper  rights  of  appeal  to  the 
highest  court  in  the  land  fully  pre- 
served, whenever  any  of  his  property 
or  other  rights  are  called  in  question. 

Torrens  System  and  Constitutional 
Guarantees. 

These  provisions  were  clearly  in- 
tended, it  can  readily  be  seen,  to 
guard  against  just  such  quick,  easy 
final  judgments  not  only  with  refer- 
ence to  life  and  liberty,  but  with  ref- 
erence to  property  of  every  kind  as 
well  as  is  urged  upon  us  as  the  chief 
merit  of  this  Torrens  law. 

It  can  of  course  be  easily  under- 
stood how  such  a law  might  be  ac- 
cepted and  enforced  without  serious 
protest  in  Eng’and,  or  its  colonies, 
where  these  fundamental  principles 
have  never  been  recognizd  or  incor- 
porated into  written  constitutions  su- 
perior to  legislative  enactments. 

Great  Britain  you  know  has  no  writ- 
ten constitution.  The  will  of  the  Eng- 
lish or  any  colonial  parliament,  there- 
fore, is  supreme  in  the  land,  so  Tar  as 
the  rights  of  any  of  its  people  are  co  i- 
cerned.  There  is  no  higher  law.  if, 
therefore,  either  of  these  legislative 
bodies  enact  a law  which  sets  up  a 
mere  clerk  in  a minor  office,  vested 
with  no  judicial  authority,  and  having 
no  legal  learning  at  all  as  the  final 
arbiter  and  supreme  judge  of  any 


property,  or  other  right  of  its  subjects 
however  sacred,  there  is  no  escape 
from  it  in  any  way,  except  one.  That 
single  way  is  opened  only  by  invoking 
that  patriotic  but  sad  and  sanguinary 
right  which  was  appealed  to  in  this 
country  against  unjust  acts  of  the  Eng- 
lish parliament  in  the  memorable 
days  of  1776, — tne  grave  right  of  revo- 
lution. 

How  then  can  we  reconcile  these 
fundamental  principles  or  constitu- 
tional guarantees,  as  they  are  termed, 
and  which  are  the  very  bulwarks  of 
our  American  liberty,  and  at  the 
foundation  of  our  whole  theory  of  gov- 
ernment in  this  country,  with  any 
such  easy  method  of  getting  an  inde- 
feasible judgment  against  any  citizen 
of  the  land,  divesting  him  with  one 
stroke  of  the  pen  of  an  accidental 
clerk,  perhaps  in  the  most  casual,  care- 
less or  even  corrupt  way,  of  all  right 
in  the  most  valuable  kind  of  property 
k..own  to  our  laws? 

The  Torrens  System  Disposed  of  in 
the  United  States. 

The  answer  to  this  question  is  sim- 
ply that  it  cannot  be  done,  and  is  lo 
be  found  set  fortli  at  length  in  two 
leading  decisions  of  our  courts,  of 
last  resort.  These  two  decisions  are 
entitled  People  vs.  Chase,  165  III.,  527 
and  State  vs.  Gui’.bert,  56  Ohio  St., 
575.  Ohio  and  Illinois  were  the  first 
two  states  in  this  country  in  which 
the  Torrens  law  experiment  was 
tried.  The  Illinois  law  was  enacted 
in  1895,  the  Ohio  law  the  following 
year.  In  these  decisions  both  acts 
were  held  wholly  unconstitutional  and 
void,  for  the  reasons  I have  indicated. 
The  language  of  the  Ohio  court  in 
concluding  the  decision  is  as  follows, — 

“However,  the  general  system  pro- 
posed by  this  act  may  have  operated 
where  no  system  of  registration  pre- 
viously existed  and  the  conserving  in- 
fluences of  constitutions  are  not  en- 
joyed, it  seems,  in  its  prominent  feat- 
ures, to  be  inapplicable  where  constitu- 


— 10  — 


tional  provisions,  paramount  to  legis- 
lative enactments,  protect  vested 
rights  and  restrict  the  state  to  the  ex- 
ercise of  functions  which  are  govern- 
mental in  their  nature.’’ 

The  Insurance  Feature. 

With  special  reference  to  the  in- 
surance feature  the  Ohio  supreme 
court  says  further  “That  this  is  in 
no  sense  a public  purpose  seems  clear. 
Considering  the  purposes  for  which 
government  is  instituted  and  the 
high  conception  of  individual  right 
which  prevailed  at  the  time  of  the 
adoption  of  the  constitution  it  would 
be  strange  if  authority  had  been  con- 
ferred upon  the  state  to  carry  on  the 
business  of  an  insurer  of  private  titles. 
No  such  authority  is  conferred  in  any 
of  the  terms  of  the  constitution.  It  is 
not  implied  in  any  of  the  enumerated 
purposes  for  which  government  is 
formed.  It  is  entirely  foreign  to  those 
purposes.” 

This  presents  an  entirely  different 
question,  it  will  be  noticed,  from  that 
presented  by  the  question  of  public 
ownership  either  municipal,  state  or 
national,  of  public  utilities.  The 
question  presented  here  is  solely  as  to 
the  propriety  of  public  competition  in 
respect  to  properly  conducted  wholly 
private  enterprises.  If  we  decide  this 
question  in  the  affirmative,  the  fur- 
ther question  is  at  once  raised  as  to 
why  the  government  should'  not  take 
over  all  business  enterprises  and  es- 
tablishments of  every  character  pri- 
vate as  well  as  public.  The  principle 
of  equality  and  fair  play  it  seems 
would  require  that  all  our  people  en- 
gaged in  any  legitimate  business 
shou’d  be  treated  the  same,  and  put 
upon  the  same  footing  in  all  respects. 

So  far  as  the  actual  original  Torrens 
law  is  concerned  or  any  other  lav^^ 
embodying  its  basic  principles,  the 
history  of  it  in  this  country  ends  right 
here.  The  argument  was  closed  with 
these  decisions  and  has  never  been  re- 
opened by  anyone  since. 


Repealed  by  Ohio  Legislature. 

So  far  as  Ohio  is  concerned,  nothing 
further  has  ever  been  done  about  the 
Torrens  law  or  any  substitute  for  it, 
except  to  repeal  it.  It  w^as  unani- 
mously repealed  by  the  legislature  of 
that  state  in  1898,  to  which  fact,  if  1 
may  be  pardonea  for  a personal  allu- 
sion, I cani  bear  indubitable  witness 
de  hors  the  record,  for  I happened  to 
be  a member  of  that  body  at  that  ses- 
sion and  quite  clearly  recall  the  facts. 
General  Wi'ey,  one  of  the  ablest  and 
most  highly  respected  members  of 
either  house,  one  morning  called  at- 
tention to  the  blunder  that  had  been 
made  at  the  previous  session  in  at- 
tempting to  ingraft  inTo  our  system  of 
laws  this  body  of  law  of  wholly  for- 
eign and  conflicting  character  and 
asked  ^o  haye  the  act  repealed.  Not 
a single  dissenting  voice  was  raised 
in  reply,  and  not  a vote  was  cast  in 
either  house  against  its  repeal,  al- 
though at  the  previous  session  it  was 
passed  'by  a great  majority  and  hailed 
by  its  advocates  as  one  of  the  great- 
est and  most  beneficial  reforms  of  the 
age. 

Chicago  Abstract  Monopoly  Prolongs 
Struggle  for  Some  Ne\A/  System  in 
Illinois. 

This  was  not,  however,  the  end  of 
the  attempt  to  introduce  a new  system 
of  land  titles  into  this  country.  In  the 
state  of  Illinois,  or  rather  merely  in 
Cook  county,  of  that  state,  where  Chi- 
cago is  situated,  the  situation  was  pe- 
culiar. There  a single  corporation 
had  succeeded  in  obtaining  a complete 
monopoly  of  the  abstract  business. 
This  was  made  possible  by  the  famous 
Chicago  fire  of  1871,  when  all  the  pub- 
lic records  were  burned. 

It  was  claimed  and  believed  quite 
generally  by  the  people  throughout 
Chicago  and  Cook  county  that  ex- 
tortionate prices  were  charged  by 
this  corporation  commonly  known  as 
the  “Abstract  Trust”.  The  people 
there  were  not  willing,  therefore  to 


— 11  — 


give  up  the  attempt  to  free  themselves 
from  this  alleged  extortionate  monop- 
oly. 

Land  Transfers  by  Lawsuit  Substi- 
tuted for  Conveyancing  by  Book- 
keeping. 

And  so  in  189Y  the  legislature  of  Illi- 
nois adopted  a new  so-called  Torrens 
law  intended  to  meet  the  constitu- 
tional requirements  in  that  state.  In 
order  to  do  this  it  was  necessary  to 
frame  the  act  so  as  not  to  give  the 
registering  officer  judicial  authority, 
as  contemplated  by  the  original  Tor- 
rens law  and  principle.  This  now 
law  therefore  provided  for  the  regis- 
tration of  the  title  by  proceedings  in 
court,  amounting  substantially  to  an 
ordinary  suit  to  quiet  title,  with  pra,c- 
tically  all  the  delay  and  expense  nec- 
essarily incidental  to  such  a suit. 
The  vital  features  of  the  Torrens  law, 
therefore,  upon  which  its  much  prized 
certainty,  rapidity  and  cheapness  in 
making  transfers  depended,  were 
pretty  thoroughly  eliminated  from  this 
act,  it  seems  scarcely  necessary  to 
mention.  It  became,  in  consequence.  In- 
stead of  a system  of  land  transfers  by 
bookkeeping  attended  to  by  a clerk,  a 
system  of  land  transfers  by  law  suits 
attended  to  by  lawyers. 

There  may  be  some  similarity  in  the 
ory between  these  twO'  methods  of  land 
transfer,  but  in  practice,  I think  it  need 
not  be  argued  that  they  are  about  as 
wide  apart  as  any  two  things  can  well 
be, — opposite  poles  of  the  land  trans- 
fer sphere,  in  fact. 

Old  and  New  Illinois  Law  Compared. 

This  new  Illinois  law  for  the  regis- 
tration of  land  titles  was,  it  is  admit- 
ted, based  upon,  not  the  Torrens  law 
and  principle  but  upon  what  is  known 

as  the  “Burnt  Record  Act”  for  quiet- 
ing titles  in  Cook  county,  Illinois,  after 
the  great  fire  in  Chicago  of  October  9, 
1871,  when  all  the  public  records  were 
burned.  It  followed  generally  the 


usual  practice  for  the  quieting  of  titles 
in  that  state,  and  established  titles  in 
the  applicant  after  the  expiration  of 
two  years  provided  the  proceedings 
had  been  properly  conducted,  and  the 
necessary  parties  had  been  broughL 
into  court  as  defendants.  If  not  the 
proceedings  as  in  all  other  quiet  title 
cases  did  not  bind.  All  usual  rights  of 
appeal  and  error,  as  in  any  other  law 
suit  are  preserved  by  it.  This  new  so- 
called  “Torrens  Law”  differs  from  the 
old  so-called  “Burnt  Record  Act” 
chiefly  in  this,  that  instead  of  the  title 
being  said  to  be  quieted,  when  the  pro- 
ceedings are  completed  it  is  said  to  be 
registered,  and  instead  of  the  work  of 
preparing  the  evidence  and  presenting 
it  to  the  court  being  done  in  the  cus- 
tomary way  by  an  abstracter  and  at- 
torney employed  by  each  man  for  him- 
self, it  is  done  by  a set  of  newly  cre- 
ated officials  for  each  county  through- 
out the  state  called  referees,  registrars 
and  examiners  of  title.  The  services 
of  the  privately  employed  abstracter 
and  attorney  are  not  however  dis- 
pensed with  by  the  creation  of  these 
new  officials.  In  practice  the  privately 
employed  abstracter  and  attorney  are 
regularly  employed  to  assist  and  guide 
these  new  officials.  Common  pru- 
dence, if  no  express  provision  of  the 
law,  is  found  to  requite  this.  These 
new  officials,  it  can  be  readily  seen, 
merely  add  to  the  public  burden  as 
well  as  the  private  expense  in  at- 
tempting to  correct  titles  instead  of 
simplifying  or  cheapening  the  process. 

It  is  further  provided  by  the  Illinois 
law  and  most  of  the  others  that  tract 
indices  shall  be  made,  and  kept  up  in 
all  counties  where  the  law  goes  into 
effect.  This  is  another  evidence  of 
the  fact  that  it  is  well  understood  by 
the  advocates  of  this  system,  that  it 
is  utterly  useless  and  impracticable  to 
put  any  reliance  upon  the  new  system, 
except  SO  far  as  it  is  based  upon  the 
old  system,  and  checked  up  in  the  old 
way.  The  law  also  re-enacted  the  in- 
demnity feature  of  the  former  law. 


— 12  — 


Illinois  Supreme  Court  on  New  Law. 

This  new  registration  law  was 
passed  upon  by  the  Illinois  supreme 
court  in  the  case  of  People  vs.  Simon, 
17G  111.,  1G5.  It  held  merely  in  this 
case,  with  many  qualifications,  that 
so  far  as  the  registration  of  titles  un- 
der it  was  concerned  it  could  be  con- 
strued so  as  to  make  it  constitutional. 
This  was  a case,  however,  which  pre- 
sented to  the  court  the  single  question 
as  to  whether  or  not  the  registrar  of 
titles  could  exercise  authority  under 
it.  This  did  not  require  the  court  to 
examine  the  constitutionality  of  the 
law  further  than  to  determine  whether 
or  not  enough  of  the  act  was  valid  to 
authorize  the  existence  of  this  officer, 
and  this  is  as  far  as  the  decision  goes. 

So  far  as  the  insurance  of  titles  is 
concerned,  any  decision  is  expressly 
disclaimed.  The  court  simply  says 
“In  our  view  of  the  case  the  indem 
nity  feature  of  the  law  need  not  be 
considered.” 

The  court  was  careful  to  leave  the 
construction  of  the  other  provisions 
of  the  law  “until  the  necessity  for 
such  construction  should  arise  in 
cases  involving  rights  under  them.” 
The  court  in  this  decision  does  say. 
however,  that  “To  the  extent  that  the 
actual  attempt  is  made  by  it  to  trans- 
fer property  without  due  process  of 
law  it  cannot  be  upheld,”  and  again 
“we  are  impressed  with  the  soundness 
of  the  objections  which  were  made 
to  those  sections  of  the  statute  per 
taining  to  the  descent  of  lands  and 
the  sale  or  mortgage  of  land  belonging 
to  minors  and  others  under  disability.” 

Law  Almost  Dead  Letter  in  Illinois. 

This  act  provides,  however,  that  it 
is  not  to  go  into  operation  in  any 
county  of  the  state  of  Illinois  until 
approved  by  a majority  vote  of  the 
people,  and  then  it  was  to  be  optional 
in  all  cases  with  every  landowner  a? 
to  whether  he  would  bring  his  land 
under  the  provisions  of  this  act  or 
continue  under  the  old  system.  It  has 


never  been  approved  of  by  such  vote 
in  any  county  of  Illinois  except  Cook, 
where  Chicago  is  situated,  and  there* 
notwithstanding  the  peculiar  condi- 
tion existing  as  to  abstracts  only 
1,508  titles  had  been  registered  under 
it  in  a period  of  about  seven  years. 
This  is  stated  by  the  court  to  be  the 
number  registered  at  date  of  decision 
in  the  case  of  Harvey  vs.  Cook 
County,  111.,  handed  down  April  17th. 
190G,  and  reported  in  the  N.  E.  Re- 
porter, vol.  77,  page  424.  I am  reli- 
ably informed,  also,  that  these  titles 
registered  are  largely  properties  of 
small  value,  or  properties  for  which 
no  merchantable  abstract  of  title  could 
be  obtained,  and  it  was  sought  in  this 
way  merely  to  remove  clouds  upon  the 
titles  registered. 

Compulsory  Registration  of  Titles 
Fails  in  Chicago. 

This  lack  of  patronage  of  course  did 
not  suit  the  officials  created  by  the 
act,  and  so  aided  by  the  deep  seated 
feeling  of  dissatisfaction  generally  en- 
tertained against  the  so-called  “Ab- 
stract Trust”  in  Chicago,  a crusade 
was  begun  by  these  officials  to  secure 
the  adoption  of  a law  to  compel  the 
registration  of  titles  in  Cook  county, 
Illinois,  and  finally  in  1903  an  act  was 
passed  by  the  legislature  of  that  state 
which  did  attempt  to  make  the  regis- 
tration of  titles  compulsory  so  far  as 
the  estates  of  deceased  persons  were 
concerned.  Before  going  into  effect  in 
any  county,  however,  this  compulsory 
statute  must  also  be  adopted  by  a vote 
of  the  people  in  that  county. 

This  compulsory  law  has  never  been 
adopted  by  such  a vote,  or  I believe 
even  submitted  to  a vote  at  all  in  any 
county  of  Illinois,  exce])t  Cook.  There 
it  was  submitted  to  a vote  of  the  peo- 
ple of  Chicago  and  Cook  county  in 
November,  1904,  in  such  a way  that 
the  supreme  court  of  Illinois  in  the 
decision  of  April  17,  190G,  last  referred 
to,  held  it  to  have  been  void  and  sub- 
stantially fraudulent.  The  supreme 


— 13  — 


court  points  out  in  that  decision  that 
the  question  as  submitted  was  hidden 
away  under  a number  of  other  ques- 
tions on  a special  ballot,  and  then  put 
in  such  a form  that  it  was  practically 
impossible  to  vote  against  it. 

There  is  no  place  in  this  country, 
therefore,  at  the  present  time,  where 
registration  of  titles  is  compulsory  on 
any  one. 

Interest  in  System  Declining;  Official 
Attention  Turning  to  Abstracts. 

Interest  in  the  whole  matter  is  now 
rapidly  declining,  even  in  Chicago  it 
clearly  appears.  As  evidence  of  this 
on  the  part  of  the  people  of  Chicago, 
it  is  sufficient  to  notice  that  the  rec- 
ords disclose  the  fact  that  the  num- 
ber of  titles  registered  for  the  first  six 
months  of  this  year  is  much  smaller 
than  the  number  for  tlie  coresponding 
six  months  of  either  1905,  1904,  1903 
or  1902.  The  exact  number  of  titles 
registered  for  the  first  six  months  of 
each  of  these  years  are  as  follows: 
1902,  190;  1903,  213;  1904,  146;  1905, 
183;  1906,  130.  For  these  exact  fig- 
ures from  the  record  I am  indebted  to 
the  kindness  of  Mr.  Wm.  Niblack  of 
Chicago,  author  of  “Niblack  on  the 
Torrens  System.” 

So  far  as  the  official  view  of  the 
matter  is  concerned  it  may  be  gath- 
ered from  the  fact,  I think,  that  the 
Cook  county  hoard  in  August,  1904 
let  a contract  for  $124,400  to  re-write 
the  abstract  books  in  the  register  of 
deed’s  office  covering  the  period  sub- 
sequent to  the  Chicago  fire. 

As  an  indication  of  the  way  it  is 
looked  upon  by  private  Chicago  cap- 
ital it  is  sufficient  to  call  attention  to 
the  fact  that  something  over  a year 
ago  a new  private  abstract  company 
was  organized  in  Chicago  with  a cap 
ital  of  $1,000,000  which  has  ever  sinc^' 
been  going  ahead  with  several  hun- 
dred people  doing  the  enormous  work 
of  getting  up  a complete  new  set  of 
abstract  records  and  indices  so  far  as 
this  is  possible. 


It  is  apparent  from  these  facts,  1 
think,  that  the  whole  people  of  Chi- 
cago are  beginning  to  understand  at 
last  that  their  only  hope  of  relief  from 
the  abstract  monopoly  alleged  to  exist 
in  that  county  is  through  competition 
in  the  abstract  business,  and  not  by 
the  introduction  of  a foreign  system 
of  land  transfers. 

Cost  of  System  in  Cook  County. 

It  may  be  of  interest  to  notice  in 
passing  what  this  paucity  of  product 
costs  Cook  county  annually.  It  is 
claimed,  about  $30,000  a year  is  paid 
to  officials  under  it,  while  only  about 
$8,000  a year  is  the  amount  taken  in, 
in  fees  annually.  This  includes  the 
amount  taken  in  from  fees  from  the 
abstract  work  done  in  the  Cook 
county  register’s  office  as  well  as  for 
registering  titles.  No  official  report, 
however,  is  made  of  the  actual  cost  of 
the  system  in  that  county  and  it  is 
claimed  by  the  opponents  of  it  that 
everything  possible  is  done  to  cover 
up  the  fact  of  this  deficit.  The  main 
effort  now  being  made  in  that  county 
by  the  Torrens  law  officials  seems  to 
be  to  develop  the  abstract  plant  in 
the  register  of  deed’s  office,  which 
they  have  been  handling  for  some 
years  in  connection  with  the  registra- 
tion work.  It  is  to  this  end  that  the 
contract  was  let  for  the  re-writing  of 
the  bool^s  to  which  I have  referred. 

Experience  of  Other  States. 

Other  states  which  have  adopted 
this  so-called  Torrens  law  are  Cali- 
fornia, Oregon,  Colorado,  Minnesota 
and  Massachusetts.  None  of  the  acts 
in  these  slates,  however,  can  fairly  be 
called  Torrens  laws.  They  are  all 
acts  similar  to  the  second  Illinois  act. 
introducing  transfers  by  law  suits  in- 
stead of  by  bookkeeping.  Under  the 
provisions  of  each  of  these  laws,  the 
lands  are  to  be  registered  by  proceed- 
ings in  court  in  which  everything  that 
is  required  to  be  done  in  an  ordinal^’ 


— 14  — 


quiet  title  suit  must  be  complied  with. 
There  have  been  no  adjudications  re- 
ported so  far  under  the  California, 
Oregon  or  Colorado  acts,  and  very  lit- 
tle notice  taken  of  their  existence  in 
any  way  in  fact  in  those  states. 
Nothing  whatever  has  been  done  un- 
der the  California  act  in  any  county 
in  this  state.  The  situation  is  practi- 
cally the  same  in  Oregon  and  in  Cali- 
fornia. 

The  Minnesota  Law. 

The  Minnesota  law  was  not  passed 
until  1901  and  is  substantially  the 
same  as  the  Illinois  law,  in  its  main 
features.  It  has  been  passed  upon  by 
the  supreme  court  of  Minnesota,  in 
case  of  State  ex  rel.  Douglass  vs. 
Westfall,  85  Minn.,  436.  This  decision 
like  the  second  Illinois  decision  merely 
co;isidered  the  provision  of  the  act 
viih  reference  to  registration.  It  is 
held  constitutional  in  this  regard  for 
the  express  reason  that  it  complies 
with  all  the  provisions  and  require- 
ments of  a suit  to  quiet  title.  The 
language  of  the  court  is,  “The  provi 
Sion  of  the  act  for  serving  the  sum- 
mons and  giving  notice  of  the  pend- 
ency of  the  proceedings  are  full  and 
complete  and  satisfy  both  state  and 
federal  constitution.  To  hold  other- 
wise would  be  to  hold  that  the  courts 
Oi  this  state  cannot  in  any  manner 
acquire  jurisdiction  to  clear  and  quiet 
the  title  to  real  estate.” 

As  to  the  value  of  registration  when 
obtained  this  decision  is  silent.  That 
question  was  not  before  the  court  in 
this  case.  In  some  recent  decisions 
in  that  state  that  question  has  been 
considered  with  a rather  disquieting- 
effect  upon  those  who  were  inclined 
to  pin  their  faith  to  this  law.  Shortly 
after  the  law  went  into  effect  a title 
which  had  been  some  years  previously 
sold  and  conveyed  to  another  by  tax 
deed  was  registered  in  an  applicant 
and  the  purchaser  at  the  tax  sale  by 
proceedings  in  court  get  the  registri.- 
tion  set  aside.  This  tended  somewhat 


to  open  people’s  eyes,  especially  as  to 
the  much  vaunted  certainty  and  seen 
lity  of  titles  under  it. 

Judge  Brooks’  Decision. 

One  of  the  most  illuminating  deci- 
sions in  this  respect,  however,  is  that 
of  Judge  Brooks  in  the  Hennipen 
county  district  court,  Minneapolis, 
Minn.,  reported  in  full  in  the  Minne- 
apolis Journal  of  April  8,  1905. 

The  court  in  this  decision,  held  a 
mortgage  for  $1,850  on  a registered 
title  to  be  invalid,  and  refused  fore- 
closure of  it  on  account  of  the  failure 
of  title  in  the  registered  owner.  The 
case  is  entitled  P.  A.  Baart  vs.  Cath- 
erine and  Michael  Martin  et  al.  and 
C.  H.  Dean,  intervenor.  The  lan- 
guage of  the  decision  in  part  is  as  fol- 
lows: 

“One,  therefore,  who  accepts  a reg- 
istered title  may  find  it  subject  to 
pending  litigation,  bankruptcy  pro- 
ceedings or  a judgment  or  other  lien, 
the  existence  of  which  can  only  be 
ascertained  by  an  examination  and 
search  of  the  records  in  the  federal 
courts.  It  has  moreover  been  ex- 
pressly decided  that  the  decree  is  void 
because  rendered  without  jurisdiction, 
as  against  the  owner  of  land  in  terms 
registered  who  was  in  actual  posses- 
sion but  not  made  a party  or  served 
with  a summons. 

“Such  want  of  jurisdiction  may  eas- 
ily arise  when,  as  is  frequently  the 
case  [and  as  in  fact  occurred  in  this 
instance]  in  determining  the  supposed 
tenants  or  other  occupants  who  should 
be  made  defendants,  the  husbands  or 
heads  of  families  are  alone  included 
and  no  regard  paid  to  the  married 
women  or  others,  any  of  whom  may 
in  fact  own  the  property  in  fee  and  be 
in  actual  possession.  Such  a decree 
is  also  void  as  against  those  whom 
the  examiner  finds  should  be  made  a 
party  and  who  are  not  specially  and 
by  name  made  such.  And  if  a person 
is  proceeded  against  as  a non-resident 
and  as  such  served  by  publication 


— 15  — 


when  in  fact  he  is  a known  resident 
and  should  be  served  personally,  the 
court  would  appear  to  be  without  jur- 
isdiction and  the  decree  and  resulting 
registration  invalid  as  to  the  appli- 
cant or  any  person  other  than  an  inno 
cent  purchaser  for  value,  and  the 
same  would  seem  to  be  true  as  re- 
spects any  known  party  proceeded 
against  not  by  name  but  as  a party 
unknown.  And  after  a registration  in 
all  respects  regular,  a loss  may  ensue 
through  a forged  deed  or  mortgage, 
and  the  party  sustaining  the  loss  have 
no  redress  whatever  against  the  land 
or  the  assurance  fund.  Gibbs  vs.  Mes- 
ser, 7 A.  M.  L.  R.,  89,  also  54  Cent.  L. 
J.,  286.  Such  infirmities  in  a regis- 
tered title  cannot  be  obviated  until 
forgery,  perjury  and  fraud  become  ob- 
solete or  our  constitution  be  amended 
so  one’s  property  may  be  appropriated 
by  another  without  due  process  of 
law.” 

He  suggests  further,  however,  that 
this  does  not  dispose  entirely  of  the 
Torrens  law.  It  takes  a legal  micro- 
scope, however,  to  see  what  is  loft  of 
it  after  he  gets  through  so  far  as  any 
benefit  conferred  by  it  is  concerned. 
His  reason  for  holding  that  it  is  not 
completely  destroyed  i)y  his  decision 
is  in  his  own  language: 

“Under  this  system  a purchaser 
maj^  if  he  so  desires,  secure  the  opin- 
ion of  an  attorney  of  his  own  selec- 
tion as  to  all  the  records  including 
those  upon  which  the  decree  of  regis- 
tration is  based  and  subsequent  con- 
veyances which  the  law  requires  to 
be  on  file  with  the  registrar.  But  par- 
ties must  still  take  their  chances. 
The  titles  may  prove  invalid  because 
of  the  failure  of  the  court  to  acquire 
jurisdiction.  This  is  true  as  to  an  in- 
nocent purchaser  whom  the  law  would 
protect  if  it  could;  and  is  still  more 
true,  and  should  not  be  otherwise  as 
to  those  who  undertake  to  secure  reg- 
istration by  methods  such  as  those 
disclosed  by  the  record  in  this  case.” 

The  purchaser  seeking  an  indefeasi- 
ble title,  it  will  be  noted,  is  still  rele- 


gated to  the  opinion  of  an  attorney 
employed  and  paid  by  himself,  to  ex- 
amine not  only  the  abstract  but  all 
the  records  including  that  of  the  reg- 
istration proceedings.  The  expense 
and  delay  are  increased  in  practice, 
unhappily,  instead  of  that  security  or 
certainty  of  title  so  much  talked  about 
in  theory. 

The  Minnesota  law  applies  only  to 
the  three  counties  in  which  are  situ- 
ated the  cities  of  Minneapolis,  St. 
Paul  and  Duluth.  It  went  into  effect 
September  1,  1901,  and  according  to 
the  letter  of  Mr.  Clarence  Childs,  a 
Torrens  law  examiner,  which  letter 
is  on  file  in  our  legislature  reference 
library  in  the  Capitol,  only  320  appli- 
cations in  all  had  been  made  in  Hen- 
nepin County,  where  the  city  of  Min- 
neapolis is  situated,  to  date  of  his  let- 
ter of  January  9,  1905.  The  number 
of  actual  registrations  is  not  stated  in 
his  letter  but  from  another  later  let- 
ter on  file  in  the  same  place,  it  is 
stated  that  only  270  certificates  had 
been  issued  at  the  later  date. 

Cost  of  Registration  in  Minnesota. 

Mr.  Rush  B.  Wheeler,  whose  letter 
is  also  on  file  in  the  same  place  and 
who  is  an  attorney  and  advocate  of 
the  system,  and  probably  an  official 
under  it,  although  this  is  not  stated, 
writes  that  it  costs  about  $50.00  be- 
sides the  fees  of  the  attorneys  to  put 
an  ordinary  lot  under  the  Torrens 
system. 

The  Law  in  Massachusetts. 

The  Massachusetts  act  so  far  as 
the  United  States  is  concerned  only 
remains  to  be  considered.  This  went 
into  effect  in  1897  and  departed  fur- 
ther from  the  original  Torrens  scheme 
in  one  respect  at  least  than  any  of 
the  other  acts.  It  provides  not 
merely  for  a quiet  title  suit  but  in  ad- 
dition provides  an  entirely  new  court 
which  is  to  have  exclusive  final  juris- 
diction of  all  this  work.  This  court 
was  called  under  the  original  act 


— 16  — 


passed,  The  Court  of  Land  Registra- 
tion. 

Judge  Leonard  A.  Jones,  the  leading- 
advocate  of  this  system  in  that  state, 
and  probably  the  most  distinguished 
advocate  of  it  in  this  country,  was 
made  the  chief  judge  of  this  court 
with  an  appropriation  of  $33,925.00 
to  pay  its  expenses  the  first  year. 
This  did  not  include  $32.25  provided 
to  be  paid  in  fees  by  each  applicant 
nor  an  additional  2-10  of  1%  of  the 
value  of  the  land  to  be  paid  into  the 
indemnity  fund.  (Outlook,  vol.  61, 
page  392.)  This  law  was  upheld  by 
the  supreme  court  of  Massachusetts, 
so  far  only  as  the  registration  fea- 
ture was  concerned  in  the  decision 
entitled  Tyler  vs.  Judges,  175  Mass 
71.  The  indemnity  or  insurance  fea- 
ture was  not  passed  upon  by  either 
the  Minnesota  or  Massachusetts 
courts  and  expressly  left  out  of  con- 
sideration, it  will  be  remembered,  by 
the  Illinois  court  so  that  to  date  the 
decision  of  the  Ohio  supreme  court 
stands  as  the  only  adjudication  with 
reference  to  it  in  this  country.  So 
far  as  the  workings  of  the  Massachu- 
setts law  are  concerned  it  appears, 
that  notwithstanding  all  this  elabor- 
ate machinery  for  its  introduction  in- 
to that  state  that  on  June  15,  1903. 
only  662  petitions  for  registration  had 
been  filled  in  the  entire  state  and  only 
533  certificates  of  title  had  been  is- 
sued. Later  information  I have  not 
been  able  to  get.  In  1904  an  attempt 
was  made  to  have  the  law  made  com- 
pulsory upon  administrators  and  exec- 
utors of  estates  in  the  city  of  Bos- 
ton. but  this  attempt  was  overwhelm- 
ingly defeated  by  the  Massachusetts 
legislature.  Later  in  the  session, 
however,  an  act  was  passed  changing 
the  name  and  jurisdiction  of  Judge 
.Tones’  court  from  Court  of  Land  Reg- 
istration to  T^and  Court  and  giving 
this  court  original  and  exclusive  juris 
diction,  except  where  jury  trials  were 
reauired,  of  practically  all  matters 
pertaining  to  land  and  incumbrances 
upon  the  same. 


Torrens  System  Indirectly  Abandoned 
by  Officials  Under  It. 

It  will  be  observed  that  this  court 
has,  therefore,  now  become  the  head 
of  the  old  system  of  land  titles  and 
that  it  has  been  given  work  as  such 
which  any  lawyer  will  readily  see,  1 
think,  will  easily  occupy  the  entire 
time  of  the  court. 

Does  this  not  mean  that  the  so- 
called  Torrens  law  has  been  impliedly 
though  not  expressly  abandoned  in  the 
state  of  Massachusetts?  It  will  be 
noticed,  however,  that  in  Massachu- 
setts and  in  Chicago  the  distinguished 
official  advocates  of  the  new  system 
of  land  titles  are  seeking  to  attach 
their  incomes  to  the  old  system.  In 
Chicago  by  turning  the  office  provided 
for  registering  titles  into  an  office  for 
making  abstracts,  and  in  Massachu- 
setts by  continuing  a court,  which 
has  almost  ceased  to  have  anything 
to  do  under  the  new  system,  by  pro- 
viding work  for  it  under  the  old. 

Law  in  any  Form  not  yet  Passed  Upon 
by  the  U.  S.  Supreme  Court. 

It  is  sometimes  claimed  that  this 
system  has  been  upheld  by  the  su- 
preme court  of  the  United  States. 
This,  however,  is  a mistake.  The 
Massachusetts  case,  the  only  case 
pertaining  to  the  subject  so  far  to  go 
to  the  United  States  supreme  court 
was  disposed  of  by  the  court  holding 
that  the  complainant  Tyler  did  not 
have  the  requisite  status  to  challenge 
the  constitutionality  of  the  law.  The 
language  of  Justice  Brown  in  the  case 
was  “The  court  could  not  decide  moot 
questions  or  abstract  propositions 
presented  by  a party  who  did  not  him- 
self show  that  he  would  be  affected.” 
The  case  is  entitled  Tjder  vs.  Judges 
and  to  be  found  179  U.  S.,  405. 

This  constitutes  the  history  of  the 
movement  in  this  country  so  far  as 
any  practical  results  are  concerned. 
The  matter  has  been  before  our  legis 
latures  and  courts  in  one  form  or  an- 
other now  for  fifteen  years,  with  the 
net  result  which  I have  outlined. 


— 17  — 


Legislative  Action  in  the  U.  S.  as  to 
System  Generally  Adverse. 

Of  course  bills  to  establish  this 
system  have  been  defeated  in  a num- 
ber of  states  by  state  legislatures, 
and  for  the  District  of  Columbia  by 
the  congress  of  the  United  States. 
Bills  providing  for  the  appointment  of 
commissions  to  investigate  it  have 
been  passed  on  in  about  every  state 
in  the  Union.  In  some  states  these 
bills  were  defeated  but  in  many  others 
they  passed  but  nothing  further  was 
ever  done  by  the  legislature  in  re 
gard  to  the  matter.  Of  all  these  gen- 
erally I have  not  thought  it  worth 
while  to  take  any  special  note.  Some 
effort  is  being  made  toward  introduc- 
ing the  system  into  Hawaii  and  the 
Philippines  but  as  to  the  extent  or  re- 
sults of  this  experiment  no  definite 
information  is  yet  obtainable. 

Defeated  in  Wisconsin. 

The  matter  has  been  before  the 
legislature  of  Wisconsin  a number  of 
times  and  in  a variety  of  forms,  but 
as  you  are  aware,  has  always  met 
with  defeat. 

With  the  efforts  made  at  the  last 
session  of  the  Wisconsin  legislature 
to  enact  a law  of  this  kind,  I believe 
you  are  all  familiar.  The  bill  which 
passed  the  house  was  in  form  similar 
to  the  Illinois  law,  but  much  more 
radical  in  several  of  its  provisions 
than  that,  or  any  other  law  ever  en- 
acted in  any  state  in  this  country 
Some  of  these  features  in  which  this 
proposed  law  differed  radically  from 
all  other  laws  enacted  elsewhere  in 
the  United  States,  it  may  be  worth 
while  to  notice. 

One  of  these  radical  provisions  was 
that  registration  of  all  lands  or  es 
tates  should  be  compulsory  upon  ad- 
ministrators and  executors,  without 
regard  to  the  wishes  of  the  heirs  as  to 
private  fees  and  consequences  upon 
the  one  hand,  and  witljout  any  submis- 
sion of  the  question  to  the  people  of 
the  county,  or  even  the  county  board. 


in  any  way  upon  the  other  hand,  not 
withstanding  the  large  public  expense 
involved  in  any  attempt  to  introduce 
the  system,  even  where  made  entirely 
optional  as  to  whether  or  not  land 
owners  should  register. 

One  of  the  important  consequences 
of  this  provision  would  have  been  an 
enormous  increase  in  the  inheritance 
tax  on  estates,  arising  from  fees  al- 
lowed by  the  act  for  such  compulsory 
registration  of  the  lands  of  such  es- 
tates. These  fees  would  have  been 
actually  confiscatory  of  small,  cheap 
tracts  or  lots  such  as  are  to  be  found 
usually  in  unplatted  villages  and  the 
like.  These  are  seldom  worth  more 
than  about  $50.00  a piece,  and  this  is 
precisely  the  amount  which,  you  will 
remember,  it  is  stated  in  Mr.  Rush  G. 
Wheeler’s  letter,  that  it  costs  to  reg- 
ister each  separate  title  under  the 
laAv,  and  this  exclusive  of  attorney’s 
fees.  Other  lands  or  property  must 
be  drawn  upon  to  pay  the  necessary 
attorney’s  fees  in  such  cases. 

Upon  a majority  vote  of  the  people 
however  in  any  county  in  favor  of  the 
law,  it  was  provided  that  it  was  to 
become  compulsorv  upon  eveiybody 
at  the  time  of  each  sale,  transfer  or 
pledge  of  any  land  to  have  it  regis- 
tered. No  other  law  ever  enacted  in 
this  country  provided  or  attempted  to 
provide  for  making  registration  com- 
pulsory upon  any  but  administrators 
and  executors.  To  make  it  compul- 
sory upon  all  as  a prerequisite  to  its 
transfer  or  pledge  was  a wholly  new 
idea  in  legislation  in  this  country. 
It  would  have  been  equivalent  to  levy- 
ing a tax  many  times  as  great  as  any 
war  tax  ever  levied  upon  real  estate 
transfers,  by  a popular  election  merely 
and  without  any  public  necessity  for 
it  being  required  to  be  shown. 

Another  provision  of  this  proposed 
law  gave  to  the  examiners  of  titles 
annointed  under  it  the  exclusive 
authority  to  do  this  work  in  each 
county.  An  important  consequence  of 
this  provision  in  practice  would  be  I 
believe  that  such  appointments  would 


— 18 


■carry  with  them  the  practically  exclu- 
sive control  and  monopoly  of  all  legal 
business  pertaining  to  such  estates  in 
each  county.  It  can  be  readily  under- 
stood by  every  one  that  administrat- 
ors and  executors  would  as  a matter 
oi  convenience  not  desire  to  be  ham- 
pered by  two  legal  advisers  in  respect 
to  any  one  state.  If  they  must  go  to 
a Torrens  attorney  or  examiner  to 
have  their  titles  registered,  why 
should  they  go  to  another  attorney  to 
attend  to  any  other  part  of  the  busi- 
ness in  regard  to  the  same  estate? 
The  Torrens  attorney,  it  must  not  be 
forgotten,  by  his  appointment  as  the 
exclusive  examiner  of  titles  in  that 
county  would  be  oiRcially  designated 
as  the  only  thoroughlj"  reliable  and 
trustworthy  practitioner  in  this  re- 
spect. Why  then  should  the  admin- 
istrator Or  executor  seek  further  for 
legal  advice  in  respect  to  the  estate 
of  which  he  has  charge.  He  is  him- 
self acting  merely  for  others  and  he 
could  not  be  expected  to  put  himself 
to  personal  inconvenience  and  trouble 
where  no  personal  interest  was  in- 
volved. 

It  is  carefully  provided  by  another 
provision  of  this  law,  however,  that  no 
registrar  or  deputy  registrar  should 
be  permitted  to  practice  law  in  any 
way.  No  restriction,  it  will  be  no- 
ticed, is  placed  upon  the  examiner  of 
titles  in  regard  to  taking  advantage 
of  his  position  in  this  respect.  He 
would  be  permitted  to  get  all  the  busi- 
ness he  could  in  any  way.  I can  con- 
ceive of  no  reason  for  making  this 
distinction  between  the  registrar  and 
deputy  registrar  who  v/ould  not  ordi- 
narily be  attorneys,  and  the  examin- 
ers of  titles  who  must  be  an  attorney, 
but  one.  It  was*  perhaps  thought 
best  not  to  permit  these  two  monopo- 
lists in  each  county  to  clash,  and  as 
the  examiner  could  not  get  any  of  the 
registrar’s  fees,  since  not  permitted 
to  register  titles,  it  was  perhaps  only 
fair  not  to  let  the  registrar  or  deputy 
compete  with  him  for  the  legal  busi- 
ness of  estates. 


The  law  also  provided  for  the  imme- 
diate making  and  keeping  up  of  a tract 
index  in  each  county  in  the  state  with- 
out any  submission  whatever  of  this 
to  the  county  board  as  at  present  pro- 
vided by  section  762  of  the  Statutes 
of  Wisconsin. 

The  bill  was  in  numberless  details 
very  crudely  drawn,  tc  say  the  least, 
and  contained  many  other  radical  and 
extraordinary  provisions  which  I will 
not  attempt  to  enunnerato.  It  was 
passed  upon  adversely  by  the  judi- 
ciary committee  of  the  house  by  a 
vote  of  9 to  2,  and  by  the  judiciary 
committee  of  the  senate,  I believe, 
unanimously  or  very  nearly  so,  and 
yet,  it  passed  the  house  by  a large 
majority,  and  as  you  know,  it  ap- 
peared at  one  time  very  possible  that 
it  would  pass  the  senate. 

This  can  be  accounted  for,  however, 
by  the  fact  that  the  bill  was  very 
skillfully  lobbied  for,  and  its  passage 
persistently  and  energetically  pro- 
moted throughout  the  session  by  two 
influential  classes  of  persons;  (1). 
Land  agents,  owners  and  attorneys 
or  other  representatives  of  land  com- 
panies having  many  of  them  large 
tracts  of  northern  lands  to  sell,  the 
title  to  which  was  based  merely  upon 
a recent  tax  sale,  or  otherwise  so 
defective  that  good  abstracts  of  title 
could  not  be  furnished.  The  interest 
manifested  in  the  bill  by  some  few 
members  of  both  house  and  senate 
and  at  least  one  ver}’’  well  known 
state  official,  who  was  quietly  very  ac- 
tive for  it,  was  accounted  for  in  this 
way.  I am  reliably  informed  this 
particular  official  has  been  for  several 
years  and  is  yet  the  regularly  retained 
attorney  of  a land  company  of  this 
kind  in  this  state. 

Of  course,  if  the  bill  had  passed, 
these  land  owners,  agents  and  attor- 
ney who  advocated  the  bill  would 
have  a very  nice  political  pull  with 
those  appointed  under  it  if  not  in 
many  cases  themselves  appointed,  and 
if  they  were  thus  enabled  to  secure 
certificates  of  title  which  would  en- 


— 19  — 


able  them  to  sell  their  lands  notwith- 
standing the  flaws  in  the  title,  the 
scandals  arising,  as  in  Minnesota, 
out  of  the  subsequent  setting  aside  of 
such  registrations,  would  not  matter 
to  them.  There  are  in  my  estimation 
perhaps  few  less  conscienceless  crea- 
tures than  some  western  land  agents 
or  land  sharks  rather,  intent  upon  the 
sale  of  their  lands  to  the  strangers 
among  whom  they  usually  operate. 
The  senator  who  introduced  the  bill 
in  the  senate,  a duplicate  of  which 
constituted  the  house  bill  has 
amassed  a fortune,  it  is  claimed,  in 
this  way.  Immediately  upon  the  ad- 
journment of  the  legislature  he  or- 
ganized a further  $250,000  company  to 
exploit  lands  largely  of  this  character, 
it  is  said,  in  other  states. 

Of  course  if  such  operators  could 
be  relieved  of  the  necessity  of  having 
their  titles  gone  over  and  approved  by 
abstracters  and  attorneys,  it  would 
give  a great  impetus  to  their  business. 
Like  all  other  gamblers  they  hate  to 
be  left  in  a position,  after  making  a 
good  stroke  of  business,  where  they 
have  no  recourse  but  to  disgorge  and 
make  good,  if  called  upon  to  do  so  by 
their  victims. 

(2)  Several  others  who  were  very 
active  in  seeking  its  passage  had  for 
their  equally  apparent  object  the  de- 
sire to  secure  appointments  under  it. 
Of  course  its  advocates  could  only  be 
trusted  to  properly  put  it  into  opera- 
tion in  each  county,  it  undoubtedly 
M^ould  have  been  argued,  had  it 
passed. 

The  great  majority  of  those  mem- 
bers who  voted  for  it,  however,  both 
in  the  house  and  senate  as  well  as 
those  in  ofiicial  positions  who  advised 
its  passage,  acted,  I believe,  honestly 
and  with  the  best  of  motives  but  on 
account  of  a lack  of  time  and  of  pre- 
vious knowledge  of  the  subject  as 
well,  were  unable  to  give  the  mattei’ 
sufficient  attention  to  perceive  its  fal- 
lacies and  so  were  merely  misled  by 
the  great  theoretical  advantages  al- 


ways claimed  for  it,  to  which  I have 
alluded  and  shown  to  be  without 
foundation. 

Gov.  LaFollette’s  Recommendation. 

The  guarded  reference  to  the  Tor- 
rens system  contained  in  Governor 
La  Follette’s  recommendation  in  his 
first  message,  to  take  some  action 
with  reference  to  the  simplification  of 
land  titles,  was  made  the  basis  of 
much  misrepresentation  or  at  least 
misunderstanding,  I believe,  of  the 
governor’s  real  views  an  1 position  in 
this  respect.  The  genera,!  subject  of 
the  simplification  of  land  titles  was 
wholly  lost  sight  of  in  the  unwar- 
ranted assumption  that  this  simplifi- 
cation which  he  recommended  w'as 
synonymous  with  the  Torrens  plan. 
This  spirit  of  course  closed  the  door 
to  any  proper  consideration  of  the 
main  matter,  and  was  not  the  spirit 
I believe  in  which  the  then  Governor 
La  Follette  desired  the  legislature  to 
act  in  reference  to  this  or  any  other 
matter  presented  to  it,  by  his  mes- 
sages or  otherwise. 

The  System  Apart  from  Constitutional 
Limitations. 

The  broad  practical  question  re- 
maining is  what  are  the  merits  of  this 
law  aside  from  all  constitutional  re- 
quirements? Is  it  an  advance  or  a 
retrogression?  If  it  is  an  advance 
along  the  right  lines  then  the  state 
constitutions,  that  are  in  conflict  with 
it,  even  the  constitution  of  the  United 
States,  if  it  conflict  with  it,  must 
give  way.  If  it  is  a retrograde  move- 
ment upon  the  other  hand,  no  consti- 
tutional objection  need  be  interposed 
to  bar  its  progress.  The  American 
people  will  when  it  is  put  into  practi- 
cal operation  readily  enough  discern 
its  trend,  and  by  disuse  quickly  dis- 
card it. 

The  answer  to  these  questions  is 
clear.  The  Torrens  system  of  land 
transfer  marks  unquestionably  a re- 


— 20  — 


trograde  movement — a return  to 
methods  aa.d  ideas  that  have  long  ago 
been  tried  and  failed.  There  is  noth- 
ing new  about  it.  It  is  an  attempt  in 
principle  as  I have  indicated  to  put 
real  estate  and  personal  property  in 
the  same  category  so  far  as  the  mak- 
ing of  laws  governing  their  transfer 
is  concerned.  But  that  is  precisely 
the  view  that  was  taken  of  it  in  the 
earliest  times  and  by  the  most  premi- 
live  peoples.  It  was  not  thought  at 
first  necessary  to  have  any  entries  in 
books,  even,  as  a record  of  the  trans- 
fer. 

In  the  ti]iie  of  Abraham  it  appears 
that  lands  were  transferied  orally. 
The  only  formality  that  seems  to  have 
been  thought  necessary  in  bible  times 
generally  was  chat  the  tiansfer  should 
be  made  :n  the  presence  of  witnesses. 
This  continued  for  a long  time,  but  it 
was  found  that  this  informality  was 
fruitful  of  fraud  and  perjury  so  about 
500  years  ago  the  so-called  statute  of 
frauds  was  passed  to  protect  owners 
of  real  estate  against  these  crimes 
which  we  are  told  were  becoming 
alarmingly  frequent. 

Nor  is  even  the  conveyance  by  law 
suit  new.  Those  of  you  who  have 
studied  the  history  of  real  property 
law  will  remember  that  for  about  200 
years  this  was  the  only  method  bv 
which  certain  estates  tail  could  be 
sold  and  conveyed  in  England. 

“Pines  and  Common  Recoveries" 
were  the  names  given,  you  will  recall 
to  this  method  of  judicial  conveyance 
Both  these  suits  were  mere  “legal  fic- 
tions.” “Solemn  pieces  of  Legal  Jug- 
gling” as  it  is  now  phrased  by  all 
commentators  upon  the  law  of  that 
time,  for  the  simple  reason  that  thei'e 
was  Tin  real  contest  and  nothing  con 
sequently  settled  or  actually  decided 
since  no  real  dispute  over  the  title 
existed.  Unless  there  is  this  actual 
nr  constructive  conflict  in  claim<= 
there  can  not  be  in  the  nature  of 
things  a real  law  suit.  The  modern 
■registrations  contemplated  by  the 
Torens  acts  in  this  country,  except 


in  the  rare  cases  where  a quite  little 
suit  is  necessary,  are  just  as  much  a 
“Legal  Fiction  and  Solemn  piece  of 
Legal  Juggling”  as  were  these  “fines 
and  recoveries”  of  old.  These  suits 
as  a method  of  conveyance  were  to- 
tally abolished  in  1833  by  an  act  of 
parliament. 

System  Wrong  in  Principle. 

The  main  reason  why  this  system 
has  been  found  so  unworkable  in  oper- 
ation, therefore,  is  not,  as  generally 
claimed  by  its  advocates,  because  the 
particular  act  in  question  in  each 
case  was  not  drawn  with  sufficient 
skill  and  attention  to  detail,  but  be- 
cause the  whole  system  is  based  upon 
a wrong  principle.  The  proposition 
that  the  great  ineradicable  differences 
between  real  and  personal  property 
can  be  ignored  in  making  laws  with 
reference  to  the  transfer  of  each  are 
completely  disproven  by  the  experi- 
ence of  mankind.  How’’  otherwise  can 
the  universality  of  the  acceptance  of 
this  statute  of  frauds  both  in  England 
and  the  United  States  be  explained? 
It  provides,  as  is  well  known  that  all 
transactions  with  reference  to  land 
only  “shall  be  void  unless  the  con- 
tract or  some  note  or  memorandum 
thereof  is  in  writing”  and  is  enacted 
into  the  statute  law  of  every  state  in 
the  union.  The  great  distinction  be- 
tween personal  and  real  property 
which  it  recognizes  and  upon  which 
in  fact  it  is  based  is  unmistakable  and 
clear. 

But  perhaps  it  may  be  argued  that, 
personal  property  is  sometimes  the 
more  valuable  of  the  two.  Even  so, 
leal  estate  still  remains  the  more  im- 
portant and  complex.  Why?  Simply 
because  property  in  each  separate 
piece  of  real  estate  may  bo  divided 
ordinarily,  into  a varietj'’  of  estates 
or  rights  in  reference  not  only  to  the 
various  uses  to  which  it  may  be  ap- 
plied, but  also  with  reference  to  the 
period  of  time  for  which  each  of 
these  uses  may  continue.  Each  of 
these  separate  estates  or  rights  may 


— 21  — 


again  be  greatly  moaified  by  subsid- 
iary rights,  as  easements  or  the  like. 
Each  piece  of  personal  property  ordi- 
narily is,  however,  intended  for  only 
one  use  and  its  life  is  usually  com- 
paratively short.  The  one  kind  of 
property  may  be  subject  to  larceny 
and  is  ordinarily  insured  against  fire, 
the  other  not.  ' The  one  may  be  moved 
about  from  one  jurisdiction  to  an- 
other. The  other  is  ordinarily  im- 
movable and  imperishable.  Many 
other  differences  which  I need  not 
enumerate  suggest  themselves. 

It  results  therefore  naturally  that 
contracts  with  reference  to  real  estate 
must  be  drawn  with  greater  care,  and 
interpreted  with  greater  precision 
and  deliberation  than  contracts  with 
reference  to  personal  property.  It  is 
not  merely  on  account  of  the  greater 
value  of  real  estate  ordinarily  that 
this  is  true,  but  on  account  of  the 
greater  length  of  time  that  a con- 
tract with  reference  to  real  estate 
may  be  of  importance  and  the  greater 
number  of  people  whose  affairs  it 
may  affect. 

Clerical  entries  in  books  usually 
constitute  a sufficient  memorandum  of 
dealings  in  personal  property.  A 
more  extended  statement  of  the  un- 
derstanding or  agreement  than  can  be 
made  by  a mere  entry  in  a book  is 
necessary  in  real  estate  dealings,  and 
this  statement  must  be  drawn  up 
like  all  complex  or  important  state- 
ments, if  proper  care  is  exercised,  by 
some  one  of  greater  information 
than  that  usually  possessed  by  a 
mere  clerk.  These  propositions  are 
really  axiomatic  in  character  and 
need  only  to  be  stated  to  be  under- 
stood and  agreed  upon. 

It  is  not  therefore  the  chief  objec- 
tion to  the  Torrens  law  that  it  is  in 
contravention  of  the  constitution  of 
the  United  States  or  of  any  state,  buf 
that  it  is  in  contra\ention  of  common 
sense,  common  prudence  and  com- 
mon honesty.  In  other  words,  I 
think  I may  safely  say  that  in  prac- 
tice it  will  never  become  popular  in 


America  to  take  any  one’s  property 
“without  due  process  of  law,”  or  to 
deny  to  any  one  the  equal  protection 
of  the  laws,  not  so  much  because  it  is 
contrary  to  the  constitution  of  the 
United  States  as  because  it  does  of- 
fense to  the  American  idea  of  fair 
play,  a.nd  the  right  of  all  men  to  stand 
upon  an  equality  before  the  law. 

Systems  of  Other  Countries. 

But  perhaps  it  is  said  that  the  Tor- 
rens law  has  been  tried  and  found  sat- 
isfactory in  England,  Germany,  Nor- 
way and  other  European  countries. 
This  until  recently  has  been  generally 
claimed  by  the  advocates  of  the  law 
to  be  a fact,  and  has  been  admitted  by 
some  opponents  of  the  law  as  perhaps 
true.  I have  made  a careful  invest! 
gation  of  this  subject  as  far  as  the 
available  sources  of  information  in  re- 
gard to  it  in  this  country  at  the  pres- 
ent time  are  concerned,  and  I find 
that  this  claim  is  altogether  un- 
founded. The  Torrens  system  proper 
has  never  been  successfully  applied 
in  any  but  an  insignificant  way,  as  in 
the  United  States,  in  any  country  out- 
side of  Australia,  New  Zealand,  Fiji 
and  British  New  Guinea.  A somewhat 
similar  scheme  was  enacted  into  law 
in  England  during  the  parliamentary 
career  of  Sir  Robert  Torrens  but  with- 
out his  assistance  or  advocacy,  as  I 
have  indicated,  but  the  results  were 
so  unsatisfactory  that  within  a few 
years  it  became  in  practice  an  ad- 
mitted failure.  Mr.  Brickdale,  the 
official  head  of  the  system  in  England 
was  thereupon  sent  to  Germany  to 
make  an  investigation  of  the  system 
of  land  titles  in  that  country.  He 
made  an  extensive  investigation  and 
a voluminous  report  upon  the  German 
system  of  land  titles  and  transfers 
and  about  1S97  a law  was  passed  for 
the  county  in  which  London  is  situ- 
ated, based  upon  this  report.  That  is 
the  law  which  is  now  in  operation 
there  and  under  which  transfers  of 
land  are  made.  The  German  system 
has  also  been  investigated  and  many 


— 22 


features  of  it  adopted  and  applied  by 
Norway,  Denmark,  Switzerland  and 
other  countries  in  Europe,  in  such  sec- 
tions of  each  of  thstse  countries  to 
which  it  was  thought  to  be  especially 
applicable. 

The  German  System. 

What  then  is  the  German  system? 

It  does  not  pretend  to  have  anything 
to  do  with  indefeasible  titles  or  offi- 
cial guarantees  or  insurance  of  titles. 
It  cannot  therefore  provide  for  regis- 
tration of  title  in  any  sense  contem- 
plated by  the  Torrens  law. 

It  is  generally  called  a system  oi 
Registration  of  Title,  however,  appar- 
ently because  the  evidences  of  the 
title  are  required  to  be  brought  into 
court  and  juJicially  passed  upon.  Ac- 
curately speaking,  however,  this 
makes  it  a judicial  recording  system 
merely. 

It  is  in  fact,  based  upon  an  entirely 
opposite  principle  to  that  supposed  to 
underlie  the  Torrens  law  not  only 
but  was  worked  out  altogether  inde- 
pendently of  the  Torrens  law,  and  for 
other  reasons  altogether  than  those 
which  prompted  Sir  Robert  Torrens  in 
devising  his  scheme.  It  is  the  pro- 
duct of  the  labors  of  German  states 
men  and  jurists  through  centuries  of 
time-:— a pure  evolution  and  develop- 
ment simply. 

One  of  the  most  careful  and  exten- 
sive, as  well  as  recent  investigation? 
of  this  whole  subject  of  land  law  re- 
form to  be  found  anywhere  is  that 
contained  in  the  reports  of  the  special 
committee  on  registration  of  land 
titles,  of  the  Pennsylvania  Bar  Asso- 
ciation for  the  two  years  of  1904 
and  1905. 

After  a cereful  enumeration  of  some 
of  the  numerous  constitutional  and 
other  objections  to  the  Torrens  law 
which  have  not  yet  been  passed  upon 
by  the  courts  but  which  this  commit- 
tee thinks  will  yet  be  found  valid  the 
report  continues  as  follows: 

“Having  the  greatest  doubts  as  t^ 


the  constitutionality  of  the  laws  which 
have  introduced  the  Australian  oi 
Torrens  system  of  land  law  into  sev- 
eral of  the  United  States,  for  the  rea- 
sons above  set  forth,  this  committee 
would  advise  against  its  adoption  in 
Pennsylvania.” 

“In  striking  contrast  with  the  crude- 
ness and  injustice  of  the  Torrens 
scheme ‘is  the  land  law  of  Germany. 
This  system  had  its  origin  in  the 
middle  ages,  and  has  grown  gradually 
with  the  increase  in  land  values,  the 
development  of  civilization  and  the 
growth  of  the  empire.  . . . It  is 

the  result  of  the  labors  of  the  greatest 
statesmen  and  most  accomplished 
jurists  in  Europe  and  is  well  worth 
the  most  careful  study  and  atten- 
tion.” 

“The  foundation  of  the  system  is  a 
public  survey  of  each  judicial  district; 
a set  of  maps  or  plans  showing  as 
matter  of  public  record  each  lot  of 
land  separately  owned,  numbered 
and  referring  to  an  index  showing  the 
names  and  address  of  the  persons  in 
possession  and  assessed  for  taxation 
as  owners  of  the  same.  This  record  is 
called  the  Cadaster.” 

“The  next  step  is  to  establish  a 
court,  of  which  the  Cadaster  is  a rec- 
ord, for  the  special  purpose  of  record- 
ing by  regular  judicial  process,  the 
title  of  each  land  owner,  who  being 
registered  in  the  Cadaster,  produces 
his  muniments  of  title  and  proves 
his  possession  accordingly,  and  is 
thereupon  decreed  to  be  the  owner; 
and  a separate  record  of  tide  is  en- 
tered as  to  each  lot  of  ground.” 

“This  recording  of  the  title  does 
not,  however,  have  any  curative  effect 
on  any  flaw  in  it;  does  not  bar  any 
adverse  claimant,  or  insure  the  owner, 
or  any  claimant  from  loss,  or  create 
any  governmental  liability  to  insure 
or  compensate  any  person  whatever. 
The  title  after  being  recorded  is  the 
same  as  it  was  before;  but  from  the 
time  that  the  title  is  recorded,  all  ad- 
verse claims  against  the  registered 


— 23  — 


owner,  and  all  transfers  of  his  owner 
ship,  all  liens  against  the  lands  and 
assignment  and  satisfaction  of  them, 
must  be  regularly  petitioned  for  iu 
the  land-court  and  entered  by  judicial 
order  on  the  proper  record  of  title, 
and  until  this  is  done,  is  conclusively 
presumed  to  be  waived,  and  is  abso 
lutely  void.” 

Our  Own  System  and  German  System 
Compared. 

It  appears  from  this  as  well  as  from 
many  other  sources  of  information  to 
which  I have  gone,  that  the  German 
system  of  land  titles  is  rather  a gov- 
ernmental elaboration  and  improve- 
ment, upon  our  own,  than  a system 
having  any  relationship  whatever  to 
the  Australian  Torrens  law  in  any  of 
its  nine  forms. 

The  foundation  of  it,  it  will  be  ob- 
served, is  a set  of  carefully  drawn 
maps  or  plats  founded  upon  a com- 
plete public  survey  of  each  entire 
judicial  district  in  which  the  bound- 
aries of  each  tract  are  of  course  all 
carefully  measured  and  shown.  In 
other  words,  all  lands  are  required  to 
be  platted  at  the  public  expense  as 
we  require  only  lands  in  cities  and 
villages  to  be  surveyed  and  platted  at 
private  expense. 

Secondly,  these  tracts  of  land  are 
all  separately  numbered  as  we  require 
city  and  village  lots  and  blocks  to  be 
numbered,  and  in  addition  there  must 
appear  upon  these  maps  or  plats  a ref- 
erence to  an  index  in  which  is  kept 
the  names  and  addresses  of  the  suc- 
cessive persons  in  possession  of  each 
tract,  as  well  as  those  assessed  for 
taxation  as  owners  of  the  same.  This 
index  will  readily  be  seen  by  abstract- 
ers to  be  merely  an  unusually  full  and 
complete  abstract  or  tract  index, 
kept  not  merely  for  the  benefit  of  the 
private  owners  of  land  but  primarily 
for  the  use  and  benefit  of  the  govern- 
ment. These  books  constitute  in 
fact  a complete  public  abstract  of  each 
separate  tract  of  land,  judicially  kept 


up  Or  rather  continued  to  date,  con- 
stantly at  public’ expense  and  not  sl 
mere  index  of  any  kind  at  all.  Tnis 
record,  called  the  Cadaster,  merely 
supplies  the  information  at  the  public 
expense  which  in  this  country  is  ob- 
tained from  the  surveyor  and  ab- 
stracter at  private  expense. 

Third,  the  decree  of  the  court  in 
vvhich  this  Cadaster  is  used  to  estab- 
lish the  title  of  land,  corresponds, 
raiher  to  our  decree  quieting  title  and 
not  to  a decree  registering  title  un- 
der the  Torrens  law.  It  is  not  in- 
tended, it  will  be  observed,  either  to 
give  any  indefeasible"  title  nor  to  in- 
demnify, insure  or  compensate  any 
one  from  any  loss  on  account  of  any 
defect  in  his  title.  In  this  respect,  it 
is  not  quite  so  good  as  our  decree- 
quieting  title,  since  where  the  court 
has  jurisdiction  and  the  proceedings 
are  properly  conducted,  many  if  not 
all  defects  are  absolutely  cured  by  the 
latter  proceeding. 

Fourth,  all  transfers,  claims  and 
liens  after  the  title  is  recorded,  in  this 
way,  must  be  passed  upon  by  the  court,, 
before  obtaining  any  validity  or  be- 
ing entered  upon  the  record.  Under 
our  system  such  claims  can  appear 
upon  the  records  in  the  various 
offices  in  which  they  belong,  but  do 
not  become  an  actual  encumbrance 
upon  the  land  if  objected  to,  until 
passed  upon  by  the  proper  court.  It 
clearly  appears  from  all  this  that  the- 
German  system  is  not  only  a much 
more  elaborate  and  complete  system 
than  our  own,  but  naturally  at  the 
same  time  a much  more  expensive 
system  both  to  inaugurate  and  to 
keep  up.  rt  was  not  instituted  by  the 
government  of  Germany,  however,  for 
the  purpose  of  providing  a cheaper  and 
quicker  method  of  making  land  trans- 
fers but  for  the  purpose  of  enabling 
the  government  to  procure  more  ac- 
curate information  for  the  assessment 
and  taxation  of  property,  and  conse- 
quently its  burden  is  a public  one. 
like  its  purpose.  Incidentally,  it 


— 24  — 


subserves  many  other  public  and  pri- 
vate purposes  but  this  is  the  main 
reason  for  it.  Think,  however,  of  the 
enormous  cost  of  the  inauguration  of 
this  system  in  a single  county  in  thif 
state,  and  of  keeping  it  up  as  well. 
It  would  be  a splendid  thing,  if  it 
were  not  for  the  expense,  but  what 
would  our  friends  whose  chief  griev- 
ance against  our  present  sytsern  is 
its  cost,  say  about  the  cost  of  this 
system?  Of  course,  the  oflEicial  fees  of 
this  German  system  paid  by  private 
parties  at  the  time' of  each  transac- 
tion under  it  are  slight,  just  as  the 
fees  in  probate  proceedings  in  this 
state  are  slight,  because  the  officials 
get  good  salaries  from  the  govern- 
ment for  their  work,  and  are  not  de- 
pendent upon  those  fees  at  all. 

In  Germany,  as  in  most  of  the  old 
-countries,  the  boundaries  generally 
speaking  of  each  little  farm  continue" 
the  same  for  long  periods.  They  are 
in  that  respect  somewhat  like  our 
city  lots,  held  largely  as  platted,  but 
to  keep  track  in  this  way  of  the 
boundaries  of  all  our  lands  in  this 
country  would  necessitate  the  employ- 
ment of  a large  corps  of  surveyors  and 
draftsmen  in  each  county  to  be  con- 
stantly kept  at  work.  We  are  contin- 
ually adding  to  and  subtracting  from 
the  size  of  our  farms  and  other  un- 
platted tracts  especially  and  at  the 
same  time  of  course  changing  bound- 
ary lines.  Very  little  of  our  farm 
lands  in  this  country,  it  is  well  known, 
is  so  valuable  or  so  carefully  culti- 
vated as  in  Germany. 

It  is  unnecessary  to  enumerate  far- 
ther I think,  the  reasons  why  this  pa- 
ternal system  of  land  titles  as  a whole 
would  not  be  acceptable  to  the  people 
of  this  country,  and  not  in  any  way 
suited  to  their  present  needs.  It  is 
in  exact  consonance  with  the  German 
form  of  government  which  we  all 
know,  whatever  its  virtues,  is  in  all 
things  distinctly  paternal  and  imperi- 
alistic. In  old  countries  having  the 


same  or  nearly  the  same  form  of  gov- 
ernment as  Germany,  and  with  the 
same  class  of  highly  cultivated  and 
seldom  transferred  small  farms  as  in 
Germany,  it  can  readily  be  seen  that 
the  same  system  might  be  found 
satisfactory  and  transplantable.  In 
this  country,  however,  while  it  is  an 
excellent  system  to  study,  it  would 
be  as  utterly  impossible  to  transplant 
or  put  it  into  successful  operation, 
as  it  would  be  to  make  one  of  the 
Kaiser’s  sons,  Roosevelt’s  successor 
in  the  white  house.  The  emperor’s 
son  no  doubt  might  do  a great  many 
good  and  wise  things  for  us,  but  the 
trouble  with  us  about  even  such  im- 
perial conduct,  I think  he  would 
speedily  find  is,  that  we  prefer  in  all 
things  to  work  out  our  own  salvation, 
and  so  would  be  found  equally  opposed 
to  good  and  bad  things  at  his  hands, 
particularly  if  we,  and  not  he,  paid  the 
bill. 

Th0  True  Way  to  Simplify  Our 
Land  Titles  and  Improve  Our 
Land  Taxing  System. 

What  then  can  be  done  to  simplify 
land  titles  in  this  country? 

The  answer  to  this  question,  the 
only  sensible  and  satisfactory  answer 
to  it  is  that  arrived  at  by  the  city  of 
New  York.  Several  commissions  have 
been  appointed  by  the  legislature  of 
the  state  of  New  York  to  investigate 
this  whole  subject,  and  make  a re- 
port. The  city  of  New  York  was  es- 
pecially and  vitally  interested  in  se- 
curing the  reform  of  the  present  sys- 
tem, or  a complete  change  to  another 
system  which  ever  promised  the  most 
substantial  advantages. 

The  Conclusion  Reached  by  the  City 
and  State  of  New  York. 

It  was  finally  decided  by  the  City  of 
New  York  that  by  improvement  of  the 
present  system,  with  which  we  are 


— 25 


familiar  and  which  is  the  outgrowth 
of  our  institutions,  our  customs  and 
our  spirit,  and  not  in  its  abandonment 
could  anything  be  accomplished. 

Mr.  Dwight  H.  Olmstead,  a member 
of  the  commission,  whose  views  were 
finally  adopted  by  the  legislature  and 
are  today  in  practical  operation  in  the 
city  of  New  York,  in  his  book  en- 
titled “Reform  in  Land  Transfers” 
fully  discusses  all  the  various  sugges- 
tions that  the  committee  considered 
and  on  page  39  summarizes  the  con- 
clusions reached  as  follows: 

“Lastly,  it  is  the  best  opinion  of  the 
modern  experts,  that  the  use  of  the 
Torrens  system  in  its  chief  features 
of  formulary  law,  official  control, 
judicial  determination  of  titles  on ' 
preliminary  examinations  with  guar- 
antee are  fallacies;  and  that  its  adop- 
tion will  prove  to  be  only  the  substi- 
tution of  a complex  and  unwieldy  sys- 
tem for  the  simpler  method  of  oui 
present  system  which  is  made  com- 
plex and  burdensome  by  the  unneces- 
sary provisions  of  existing  laws  which 
can  be  readily  modified  or  changed. 
In  short,  that  there  is  but  one  way  to 
obtain  a serviceable  system  of  land 
transfer  with  registration  in  this 
country,  and  that  is  by  improving  the 
present  system,  and  it  is  believed  that 
by  such  improvement  with  the  light 
which  has  of  late  years  been  thrown 
upon  the  subject,  the  transfers  of 
land  can  be  made  as  quick,  inexpen- 
sive and  safe  as  is  the  transfer  of 
registered  corporate  stocks  and 
United  States  registered  bonds,  with- 
out the  addition  of  the  guarantee 
plan — and  this  is  sufficient  for  all 
practical  purposes.” 

On  page  19  of  the  same  book,  Mr. 
Olmstead  says: 

“The  unsettled  legal  questions  con- 
nected with  such  Torrens  acts  as 
have  been  passed  in  the  United  States 
are  many  and  serious.  But  could  such 
questions  be  settled  favorably  to  the 
adoption  of  the  system,  its  complex- 


ity,' and  illy  adapted  provisions  to  the 
main  purpose  in  view — namely,  that  of 
simplicity  and  convenience,  would 
preclude  its  general  use.” 

Some  Suggested  Improvements. 

What  are  the  specific  improvements 
which  can  be  made  in  our  present 
system?  These  are  numerous  and  in 
endeavoring  to  make  them  we  may 
study  with  great  advantage  every  gen- 
eral system  of  titles  in  the  world 
including  the  Torrens  system  not  only 
but  the  special  national  forms  of  each 
as  well.  We  will  profit  most  from  the 
study  of  the  German  and  French 
forms  of  our  own  system,  however,  I 
believe.  It  is  an  absolute  prerequi- 
site, however,  that  we  begin  by  cut- 
ting out  this  foolish  agitation  for  a 
foreign  system.  This  agitation  has 
for  15  years  simply  stopped  the  wheels 
of  progress,  and  accomplished  nothing. 

Our  statute  of  limitations  in  refer- 
ence to  lands  might  be  greatly  short- 
ened, and  especially  with  reference 
to  minors,  incompetents  and  other  per- 
sons under  disabilities.  A limitation 
of  only  one  or  two  years  as  provided 
in  most  of  the  Torrens  acts  is  I be- 
lieve, too  short,  but  the  limitations 
under  our  present  statute  is  I believe 
undoubtedly  too  long,  especially  when 
the  claim  to  the  land  is  based  on  a 
judgment  or  decree. 

The  proceedings  to  quiet  title,  to 
foreclose  mortgages,  to  partition 
lands,  to  sell  lands  by  guardians  and 
administrators  can  be  and  should  all 
be  greatly  simplified.  The  use  of 
short  forms  of  deeds,  mortgages  and 
other  instruments  of  conveyance 
should  be  required.  Notice  of  all 
liens  existing  aginst  said  land  in  any 
office  in  the  county  should  be  required 
to  be  filed  in  the  register  of  deeds 
office,  as  suggested  by  the  practice  un- 
der both  the  German  and  the  Torrens 
system. 


— 26  — 


Some  Testing  and  Supervision  of  Con 
veyancers  Necessary. 

Most  of  the  defects  in  titles,  how- 
vever,  and  consequent  trouble  about 
them,  are  caused  by  tne  lack  of  knowl- 
edge or  carelessness  on  the  part  of 
those  employed  to  execute  con- 
veyances. There  should  be,  I believe, 
some  examination  and  supervision  of 
notaries  public  and  otner  officials 
permitted  to  execute  conveyances  or 
other  instruments  pertaining  to  land. 
'The  notary  in  France  is  a much  more 
important  functionary  than  in  this 
country.  His  attestation  there  is 
«aid  to  “legalize”  the  instrument,  not 
merely  acknowledge  it.  I think  in  this 
respect  we  might  follow  the  example 
of  France  so  far  at  least  as  requiring 
our  notaries,  not  only  to  present  sat- 
isfactory evidence  that  they  have  the 
necessary  knowledge  to  properly  dis- 
charge their  duties,  before  granting 
them  commissions,  but  also  to  require 
them  to  exercise  this  knowledge  or  be 
•compelled  to  relinquish  these  com- 
missions. 

They  should  be  required  for  in- 
-stance  to  observe  whether  the  de- 
scription contained  in  the  instrument 
is  reasonably  definite  and  certain  be- 
fore permitting  the  instrument  to  be 
•executed.  This  is  equally  important 
from  a public  as  well  as  from  a pri- 
vate stand  point.  On  page  nine  of  the 
“Instructions  to  Assessors  and  Board 
•of  Reviews”  by  the  Wisconsin  Tax 
Commission  for  190G,  it  is  noted  that 
all  descriptions  of  land  “which  fail  to 
indicate  definitely  and  with  certainty 
the  particular  parcel  to  be  described 
will  render  the  assessment  of  such 
parcel  illegal  and  the  taxes  based 
Ihereon  will  be  non-enforcible.”  As 
examples  of  such  indefiniteness  in  de- 
scription attention  is  called  by  the 
Commission  to  such  expressions  as 
•"‘north  part,”  “east  part”  or  merely 
•“part,”  or  even  “remaining  part”  of 
•some  designated  lot  or  40  acre  tract. 


all  of  which  are  mentioned  as  quite 
common  descriptions  to  be  found  in 
tax  rolls. 

Equally  indefinite  and  worse  de- 
scriptions all  abstracters  know,  are 
frequently  to  be  found  in  deeds  and 
mortgages,  carefully  sealed  anfi  ac- 
knowledged by  duly  commissioned 
notaries,  and  likewise  fully  extended 
upon  the  records  in  the  register  of 
aeeds  office. 

For  instance,  a large  number  of  lots 
in  one  village  in  this  county,  which 
was  not  originally  platted,  has  for  a 
common  starting  point  of  several  long 
and  frequently  confused  and  incorrect 
metes  and  bounds  descriptions  “the 
place  where  the  blacksmith  shop  now 
stands.”  This  shop  it  seems  was 
moved  several  times  while  in  exist- 
ence, but  about  twenty  years  ago  dis- 
appeared altogether.  These  descript- 
tions,  however,  continue  to  be  accep- 
ed  and  even  in  some  instances  ludi- 
crously improved  upon  in  indefinite- 
ness, as  in  one  deed  which  I noticed 
not  long  ago  of  one  of  these  lots,  the 
word  “shop”  was  omitted  from  the  cus- 
tomary phrase,  thus  making  the  start- 
ing point  of  a long  description  “the 
place  where  the  blacksmith  now 
stands.” 

Mistakes  Not  Confined  to  Obscure 
Officials. 

These  errors  are  not  confined  to  in- 
struments acknowledged  by  obscure 
notaries  or  country  Justices  of  the 
peace  as  sometimes  supposed.  Such 
descriptions  are  not  infrequently  to  be 
found  in  instruments  executed  by  very 
prominent  and  able  lawyers  who 
merely  sign  their  names  to  the  ac- 
knowledgment without  ever  looking 
over  the  instrument  at  all,  or  if  they 
do  notice  that  the  description  is  indefi- 
nite or  incorrect  prefer  not  to  take  t^'^ 
time  or  go  to  the  trouble  to  get  a cor- 
rect description.  For  instance,  a short 
time  ago  a deed  came  to  my  attention 
acknowledged  by  an  eminent  lawyer 


— 27  — 


of  this  city  in  which  one  of  the  desig- 
nated corners  of  a rather  valuable 
lake  shore  tract,  was  given  as  the 
point  where  this  lawyer  and  another 
individual — a prominent  financier  of 
this  city — stood  on  the  2nd  day  of 
June,  1902. 

Another  eminent  lawyer  of  this  city 
some  time  ago  acknowledged  a $5,000 
mortgage,  which  is  of  record  in  this 
county,  on  a lot  which  was  described 
simply  as  lot  8 in  University  Addition. 
Nothing  further  was  stated  except  that 
it  appeared  by  the  printed  form  that 
the  property  was  situated  in  this 
county  and  state.  Now  it  happens 
that  plats  of  two  different  university 
additions  are  on  record  in  the  of- 
hce  of  register  of  deeds  here.  One 
of  these  additions  is  located  in  the 
city  of  Madison,  the  other  in  the  vil- 
lage of  Mazomanie,  and  it  further  hap- 
pens that  there  is  a lot  8 in  every 
block  of  each  or  these  two  additions. 

Of  course  these  lawyers  were  not  to 
blame  if  merely  called  upon  to  ac- 
knowledge these  instruments,  and  not 
employed  to  examine  them.  Even 
where  employed  to  draw  instruments, 
clients  are  seldom  willing  to  pay  for 
the  time  and  trouble  frequently  neces- 
sary to  get  a correct  description,  and 
lawyers,  and  especially  very  busy  ones, 
cannot  be  expected  to  go  further  than 
required  by  law,  when  their  client 
may  be  unwilling  to  pay  them  for  their 
work,  and  perhaps  do  not  understand 
the  necessity  of  it. 

If,  however,  the  law  required  every 
notary  or  other  conveyancer  to  exam- 
ine and  approve,  or  “legalize”  as  it  is 
said  in  France,  every  instrument  be- 
fore signing  his  name  to  the  acknowl- 
edgment, we  would  not  see  one  flaw 
in  the  execution  of  instruments,  I be- 
lieve, to  100  such  defects  that  are 
found  at  present. 

Governor  Hanley  of  Indiana,  I no- 
tice by  the  papers  a few  days  ago, 
commissioned  a girl  14  years  of  age 
as  a notary  public  in  one  county  in 


Indiana.  It  seems  that  the  statutes  in 
that  state  make  no  age  requirement  in 
reference  to  the  appointment  of  no- 
taries public.  There  was  no  alterna- 
tive therefore  for  him  probably  but  to 
appoint  her. 

For  all  practical  purposes  as  the 
law  now  stands,  however,  it  seems  to 
me  we  might  just  as  well  have  all 
children  notaries  in  every  state  in  the 
Union.  About  the  only  requirement  of 
any  importance  which  the  law  at 
present  makes  at  the  hands  of  any 
person  taking  an  acknowledgment  is 
that  he  identify  the  parties,  and  this 
is  usually  done  in  the  most  perfunc- 
tory manner,  it  at  all. 

Supervision  and  Control  of  Public 
Platting. 

There  should  also  be  some  supervi- 
sion and  control  of  the  plats  permittee' 
to  go  upon  the  public  record  and  fur- 
ther provision  made  for  much  more 
work  of  this  kind.  There  are,  for  in- 
stance in  this  county  as  well  as  in 
many  others  I have  no  doubt, a number 
of  plats  recorded  to  which  no  ex- 
planatory notes  are  attached.  Some 
other  plats  that  have  come  to  be  of 
great  importance  have  no  satisfactory 
notes,  and  others  again  are  defective 
in  many  other  important  respects. 
Among  the  most  fruitful  sources  of  er- 
ror and  confusion,  although  by  no 
means  all  such  sources  with  reference 
to  plats  we  find  is  the  giving  of  the 
same  or  similar  name  to  several  dis- 
tinct plats.  There  are  two  plats  on 
record  in  this  county  of  distinct  tracts 
of  land  but  of  exactly  the  same  name. 
A printed  abstract  of  one  of  these 
plats  was  made  and  a number  of  cop- 
ies distributed.  Some  time  ago  one  of 
these  printed  abstracts  was  brought  to 
our  office  for  continuation  as  the  ab- 
stract of  the  corresponding  lot  in  the 
other  tract.  It  had  been  examined 
and  approved  two  or  three  times,  it 
seems,  as  an  abstract  of  such  lot. 
The  surveyor  and  not  the  examiner,  of 


— 28  — 


course,  was  mainly  to  blame  for  this 
unpardonable  error. 

Most  frequently,  however,  the 
names  are  merely  so  similar  that 
many  people  do  not  notice  the  differ 
ence  and  in  writing  descriptions  put  in 
one  name  when  another  is  meant,  as 
when  there  are  two  or  more  subdivi- 
sions platted  by  the  same  man  and  all 
bearing  his  name  and  distinguished 
only  as  first,  second,  third,  etc.  The  de- 
scription in  such  cases  is  likely  to  con- 
tain only  the  general  name.  Confu- 
sion in  this  respect  could  of  course  be 
avoided  by  numbering  the  blocks  in 
all  such  plats  consecutively  as  if  there 
was  but  one  plat,  but  this  is  seldom 
done.  The  blocks  are  generally  num- 
bered separately  in  each  plat  from  one 
up  to  only  the  number  in  each  sepa 
rate  plat. 

Only  Complete  General  Survey  and 

Plat  Can  Clear  Some  Descriptions. 

Undoubtedly,  however,  the  worst 
difficulty  with  which  assessors,  ab- 
stracters and  others  have  to  deal  is 
that  to  be  found  in  the  descriptions 
usually  given  the  tracts  in  the  unplat- 
ted parts  of  cities  and  villages,  and 
also  the  lands  immediately  surround- 
ing cities  and  villages.  All  of  these 
lands  are  usually  valuable  and  much 
cut  up,  as  you  are  well  aware.  The  de- 
scriptions or  that  which  is  supposed  to 
be  such  in  the  instruments  conveying 
lands  in  such  places  frequently  consti- 
tute a kind  of  endless  chain  by  contin- 
ual reference  from  one  instrument  to 
another  for  the  exact  description.  If 
a starting  point  is  finally  found  it 
will  probably  be  located  with  refer- 
ence to  some  structure,  or  other  tem- 
porary land  mark,  not  noted  on  any 
recorded  plat,  even  if  not  moved  or 
gone  out  of  existence  altogether. 

To  illustrate: — In  this  county  a 
number  of  lots  in  one  unplatted  vil- 
lage are  described  with  reference  to  a 
poiht  on  the  highway  designated  as 
“near  store  now  owned  by  A.  B.  L.” 


Neither  this  store  nor  this  man  can 
now  be  located,  even  if  it  were  possi- 
ble to  determine  the  distance  and  di- 
rection considered  “near.”  A number 
of  tracts  in  and  about  another  village 
are  all  described  with  reference  to  a 
point  “on  the  line  between  Jesse  S. 
and  Duty  J.  G.  on  the  West  of  J.  N 
W.’s  house  lot.”  In  still  another  the 
descriptions  begin  “in  the  center  of 
the  highway  leading  from  R.  T.  to  S 
J.  P.’s  in  the  town  of  O.  at  a point  8 
chains  and  15  links  Southeast  from 
point  from  where  road  from  A.  K.  to 
S.  S.  crosses  first  mentioned  road.” 
I give  only  the  initials  of  the  full 
names  in  these  descriptions. 

Bill  Nye’s  Style  of  Land  Description 

These  descriptions  remind  me  of  the 
way  in  which  Bill  Nye  located,  for  the 
benefit  of  certain  trustful  investors,  the 
points  where  an  alleged  ore  deposit 
was  located  in  a western  county: 

“It  cropped  out,”  he  said,  “apparently 
a little  Southeast  of  a point  where  the 
arc  of  the  orbit  of  Venus  bisects  the 
milky  way,  and  ran  due  Bast  80 
chains,  three  links  and  a swivel, 
thence  South  fifteen  paces  and  a half 
to  a blue  spot  in  the  sky,  thence  pro- 
ceeding West  eighty  chains,  three 
links  of  sausage  and  a half  to  a fixer 
star,  thence  North  across  the  lead  to 
the  place  of  beginning.” 

In  all  such  localities  as  these  to 
which  I have  referred  I believe,  a gen- 
eral survey  and  platting  should  be  re- 
quired to  be  made,  and  put  upon  record 
for  the  information  alike  of  tax  offi 
cials  and  private  parties.  Sections 
1047  (a)  and  1048  (b),  statutes  1898, 
provide  for  a survey  and  platting  at  the 
public  expense  of  such  lands  by  the 
direction  of  the  common  council,  if 
within  the  limits  of  an  incorporated 
city,  and  by  direction  of  the  county 
clerk  if  not  within  such  limits,  after 
due  notice  to  the  owners  to  make  and 
record  the  particular  plat  in  question. 
The  tax  commission  in  their  ilistruc- 


29 


tions  for  this  year  direct  city  asses- 
sors to  proceed  to  take  such  steps  as 
may  be  necessary  to  put  the  proper 
proceedings  in  motion  to  have  this 
work  done. 

Should  Not  Be  Left  to  Local  Officers. 

The  doing  of  this  work,  however, 
should  not  be  left  to  the  option  of  the 
local  officials  such  as  assessors,  com- 
mon councils  and  county  clerks,  but 
should  receive  the  careful  attention 
and  be  under  the  supervision  and  con- 
trol of  some  better  informed  official, 
less  susceptible  to  local  influence  in 
reaching  a conclusion  as  to  how  and 
when  it  should  be  done,  than  such 
officials  generally  are  found  to  be. 

Supervision  of  Register  of  Deeds’ 
Offices. 

There  should  be  also  greater  uni- 
formity and  progressiveness  than  at 
present  obtains  in  the  methods  and 
bookkeeping  in  our  registers  of  deeds 
offices  generally  throughout  the  state. 
This  can  only  be  secured  by  proper 
supervision  and  testing  of  the  qualifi- 
cations of  these  officials  and  their  dep- 
uties. 

A most  extraordinary  advance  in 
office  methods,  books  and  appliances 
for  every  purpose  has  been  made  in 
the  last  five  years.  This  advance  has 
been  so  great  as  to  practically  revolu- 
tionize as  well  as  greatly  facilitate  the 
work  in  banks,  and  all  other  up  tc 
date  private  business  offices.  All 
this  advance,  however,  has  made  prac- 
tically no  impression  whatever  in  the 
offices  of  registers  of  deeds  through- 
out the  state.  The  registers  of  deeds 
of  course  are  not  personally  to  blame 
for  this.  They  do  not  usually  claim  to 
have  any  special  knowledge  along 
this  line.  They  have  very  little  free- 
dom in  making  any  change  and  no  en- 
couragement, or  expert  assistance  or 
advice  in  attempting  to  keep  pace 
with  modern  office  methods  and  ideas. 
As  a result  they  are  everywhere  many 


years  behind  the 'times  in  this  respect. 
In  this  fact  is  to  be  found  the  expla- 
nation largely  of  the  increasing  num- 
ber of  complaints  against  the  system 
in  the  older  and  larger  counties.  It  is 
the  administration  of  the  system  that 
is  principally  to  blame  in  this  respect 
as  in  most  others  rather  than  the  sys- 
tem itself. 

Supervision  and  Control  of  Abstract 
Work  and  Offices. 

Lastly,  I believe  there  should  be 
some  general  supervision  and  control 
by  regular  examinations  or  otherwise 
of  all  abstract  offices,  books,  workers 
and  methods  throughout  the  state  to 
the  end  that  only  goo:l  abstracts  at 
reasonable  prices  should  be  permitted 
to  be  furnished  the  public.  This  su- 
pervision and  examination  should  ex- 
tend not  only  to  private  abstract  offi- 
ces but  to  all  abstract  books  and  work 
done  by  registers  of  deeds,  or  other 
officials,  contractors  or  employees  in 
such  offices.  There  is  at  present  be- 
ing made  an  expenditure  of  about  $70,- 
000.00  in  one  county  in  this  state  for 
a set  of  abstract  books  without  any  ex- 
pert testing  of  the  work,  or  employees 
of  the  contractor  engaged  in  getting 
up  these  books,  althougn  I am  in- 
formed the  money  is  being  paid  out 
regularly  to  this  contractor  and  his 
employees  as  the  work  proceeds.  Per- 
haps similar  conditions  exist  in  other 
counties.  These  are  some  of  the 
things  which  it  seems  to  me  should  re- 
ceive attention.  No  doubt  there  are 
others  of  equal  importance. 

System  Requires  Head. 

The  first  and  most  important  step 
that  should  be  taken,  however,  and  in 
fact  must  be  taken  in  order  to  make 
our  so  called  Land  Title  System  a 
system  at  all,  is  to  provide  for  it  an 
administrative  head.  This  head  should 
not  be,  however,  a court,  either  state 
or  local,  as  provided  under  the  Massa- 
chusetts and  most  other  Torrens  laws 


but  an  administrativt;  officer  or  com- 
mission, such  as  the  bank  examiner, 
the  superintendent  of  education,  or  the 
tax  commission.  The  supervision 
and  control  to  which  I ha\e  referred 
as  desirable  should  be  lodged  with 
this  new  department.  It  is  too  largf 
a task  requiring  too  much  special 
knowledge,  study  and  attention,  tc 
tack  on  to  any  existing  department  of 
our  state  government. 

Importance  of  Unity. 

In  this  way,  and  this  way  only,  can 
that  unity  which  is  absolutely  essen- 
tial to  steady  progress  and  harmoni- 
ous work  be  secured.  As  an  instance 
of  the  importance  of  this  unity  in  the 
further  development  of  our  system,  at- 
tention may  be  called  to  the  import- 
ant work  being  done,  and  the  large  ex- 
penditure made,  and  that  must  here- 
after at  frequent  intervals  again  be 
made,  to  secure  a just  and 
and  proper  assessment  of  the  physi- 
cal and  other  property  of  the  rail- 
roads in  this  state.  Some  two  or  three 
years  ago  about  $30,000.00  was  ex- 
pended under  the  direction  of  Profes- 
sor Taylor  of  the  University  in  this 
work.  Most  of  the  money  was  spent, 
I believe,  in  abstracting  from  the  pub- 
lic records  in  the  various  counties  of 
the  state  through  which  railroads 
run,  the  consideration  paid  for  the 
land  conveyed,  and  other  data  given  in 
deeds  conveying  lands  abutting  upon 
railroad  rights  of  way.  The  work  of 
abstracting  these  deeds  was  done  by 
students  sent  out  over  the  state  from 
this  city.  It  is  estimated  by  the  offi- 
cials at  present  having  charge  of  this 
work,  that  it  must  be  done  over  again 
regularly  at  intervals  of  about  five 
years.  A much  larger  sum  was  spent 
by  the  railroads,  I am  informed,  in  do 
ing  the  same  work  independently,  for 
its  own  information,  for  the  purpose 
of  meeting  the  arguments  and  expert? 
of  the  state. 


An  investigation  of  the  same  kind  is 
now  going  forward  under  the  direction 
of  Professor  Adams  of  the  University 
with  27  assistants,  1 am  informed  in 
the  field.  This  investigation  is  made 
for  the  purpose  of  comparing  the  ac- 
tual or  selling  value  and  the  assessed 
value  of  real  estate  generally  through- 
out the  state.  I have  inquired  of  Pro- 
fessor Adams  but  he  was  unable  to 
inform  me  as  to  what  the  probable 
cost  of  it  would  be,  and  it  is  not  yet 
nearly  completed.  He  has  been  at 
work,  however,  for  about  three  years 
he  informed  me.  So  that  in  view  of 
the  much  greater  scope  of  this,  as 
compared  with  the  other  investigation 
relative  to  railroad  property  it  can 
reasonably  be  presumed  that  it  will 
cost  several  times  as  much. 

Larger  Task  Remaining. 

This  is  all  statistical  work,  to  be 
used  as  a basis  in  making  comparisons 
of  assessments  and  valuations  of  the 
different  kinds  of  property  in  the 
state,  and  also  comparisons  of  valua- 
tions and  assessments  of  property 
generally,  in  different  sections  of  the 
state.  It  does  not  begin  to  compare 
in  importance  or  extent,  with  the 
much  more  serious  task  of  fixing 
boundaries  and  obtaining  acreage  of 
real  estate  tracts  generally  through 
out  the  state,  for  the  purpose  of  mak- 
ing a complete,  accurate,  just  and  le- 
gal valuation  for  assessment  for  taxes 
of  all  lands  in  the  state. 

This  very  large  undertaking  we 
must  necessarily  sooner  or  later 
systematically  enter  upon  and  com 
plete.  Valuation  depends  on  acreage, 
it  need  not  be  argued,  and  acreage 
cannot  be  determined  until  boimdarie? 
are  clearly  fixed,  it  is  equally  certain. 
These  boundaries  can  be  ascertained 
only  by  complete  surveys  in  many  lo- 
calities such  as  I nave  indicated. 
These  surveys  and  fixing  of  boundaries 
are  as  imperatively  necessary  for  pri- 
vate as  for  public  purposes. 


— 31  — 


Good  descriptions  are  the  absolute 
pre-requisite  to  the  successful  opera- 
tion of  any  system  of  land  transfers. 
With  good  descriptions  in  all  our  in- 
struments of  conveyance  nine-tenths 
of  the  troubles  complained  of  at  pres- 
ent would  disappear.  No  mere  sys- 
tem can  supply  those  who  use  it, 
with  either  brains  or  prudence  or  in- 
dustry, tne  qualities  from  which  good 
land  descriptions,  as  well  as  all  good 
results  in  real  estate  dealings  are 
evolved.  The  basis  of  all  true  valua- 
tion and  assessments,  as  well  as  the 
foundation  of  all  systems  of  land 
transfers  are  correct  descriptions. 
This  is  the  key  to  the  success  not 
only  of  all  land  title  systems,  but  of 
all  land  taxing  systems  as  well. 

The  task  of  getting  these  every 
where  in  the  state  is  a large  one,  but 
it  must  be  completed  before  true  val- 
uations can  be  0..^  coined,  or  misunder- 
standings and  consequent  trouble  and 
litigation  about  lands  cease  to  occur. 

The  Abstracter’s  Part  of  this  Import- 
ant Work. 

So  far  as  obtaining  data  from  deed 
or  other  records  for  this  or  any  other 
purpose  this  work  could  be  much  more 
cheaply,  quickly  and  reliably  done  by 
abstracters  in  each  county  in  charge 
of  properly  equipped  abstract  offices, 
than  in  any  other  way,  it  must  be  of 
course  well  known  to  every  one.  So 
long,  however,  as  the  state  has  no 
supervision  or  control  over  the  meth- 
ods or  workers  in  these  offices,  it  is 
not  surprising  that  a much  larger  ex- 
pense than  v/ould  otherwise  be  neces- 
sary, has  been  incurred  by  the  state 
in  order  to  secure  this  information  at 
first  hand,  through  its  own  searchers 
and  examiners  of  deed  records.  Even 
though  such  searchers  are  slow  and 
untrained,  and  without  the  necessary 
indexes  in  any  county  probably  of  the 
state  to  do  the  v/ork  quickly  and  ac- 
curately, it  is  preferred  ny  the  state 
to  do  it  in  this  way,  nevertheless. 


than  through  abstract  offices  over 
which  it  has  no  supervision. 

If  unity,  however,  in  the  work  of  our 
system,  is  secured  by  the  establish- 
ment of  a commission  or  department 
to  supervise  and  administer  it,  with 
even  very  limited  powers  at  first,  un- 
doubtedly very  great  progress,  as 
well  as  a very  great  saving  will  soon, 
be  apparent,  I think  it  is  easily  dem- 
onstrable, in  respect  both  to  public- 
and  private  expenditures.  The  whole- 
subject  can  be  carefully  studied  and 
constant  improvement  made.  Other- 
wise constant  duplication  of  all  kindff 
of  work  and  expenditure  will  continue 
to  occur.  Constant  conflict,  too,  will 
arise  in  the  working  out  of  each  new 
1 problem.  In  addition  to  the  saving 
that  would  result  from  this  unity  and 
which  would  in  itself,  I think,  many 
times  exceed  the  cost  of  the  most 
complete  supervision,  there  would 
also  be  an  enormous  economy  on  ac- 
count of  the  litigation  avoided  by  rea- 
son of  the  defects  in  title  prevented, 
to  say  nothing  of  the  great- resultant 
cheapening  of  the  price  of  abstracts 
and  examinations,  by  reason  of  the 
lessened  labor  and  responsibility  oc- 
casioned by  these  improvements. 

Final  American  System  of  Land  Titles. 

In  this  wmy  the  final  American  sys- 
tem of  land  titles  will  be  evolved,  and 
this  final  system,  like  every  other 
fully  developed  American  product,  it 
is  no  exaggeration  to  say,  will  un- 
doubtedly be  the  best  in  the  world. 
It  must  be  so,  because  it  will  be  a 
composite  of  all  the  good  points  of  all 
the  other  land  title  systems  in  exist- 
ence, just  as  the  ultimate  American 
will  be  a composite,  and  therefore  a 
more  perfect  individual,  representing 
in  his  make  up  the  good  qualities  of 
the  typical  men  of  every  great  nation- 
ality in  the  world. 

Conclusion. 

In  conclusion  I wish  to  call  your  at- 
tention to  the  chief  merit  of  the  pres- 


ent  recording  system — the  great  merit 
that  makes  it  even  as  it  stands  with 
all  its  imperfection,  far  better  than 
any  other.  This  supreme  merit  is  the 
facility  with  which  it  lends  itself  to 
e>ery  kind  of  practical  improvement 
just  as  fast  as  the  people  desire  to 
make  it,  exactly  as  the  supreme  merit 
perhaps  of  our  national  and  state 
form  of  goveinment  as  well  as  our 


American  institutions  and  spirit  gen- 
erally, is  to  be  found,  upon  the  other 
hand,  in  the  insuperable  obstacles 
which  they  present  to  the  introduction 
of  foolish  and  impracticable  innova- 
tions, such  as  that  embodied  in  the 
Torrens  system  of  land  transfers  as  a 
whole,  or  any  other  entire  body  of  for- 
eign and  unfamiliar  law. 


